Lord McKenzie of Luton: My Lords, the fact that the commission needs a presence in London has been recognised. That is why it is part of the proposals. Final decisions on which tasks will be allocated to which site and, therefore, which personnel have not yet been taken. There will be ongoing consultation, but it is recognised that there will be a significant presence in London particularly to deal with the matter of influence in the issues, a key part of the commission's work.

Lord Warner: My Lords, given the background of the noble Baroness, I think she is well aware that there is no perfect way of assessing quality of life. A certain degree of value judgment and assumption underpin such calculations. We accept that these are difficult issues, but NICE does invite submissions from patient and carer groups when making its appraisals. Moreover—and I commend the institute on this—it has established a 30-member citizens' council to help it to tease out some of the many complex social, moral and ethical issues involved in some of the judgments it has to make.

Lord Warner: My Lords, on the latter point, there is a fast-track system for considering single products. NICE has produced a consultation document on that and responses are awaited.
	The noble Lord knows that the issue of Alzheimers drugs is still under consideration by NICE in the light of comments made on its draft guidance. NICE went away and reconsidered this matter with many of the producers of these drugs to see what the impact would be on particular sub-groups of users.

Lord Ezra: My Lords, I ask this question in the light of the report of the Trade and Industry Select Committee in another place which was published very recently and contains some disturbing conclusions. In spite of what the Minister has told us, is it not now becoming clear that gas shortages are likely to arise over the next two to three years? Does this not suggest that the preparations for the change-over from self-sufficiency to import-dependence were not adequately undertaken? Was this not influenced by the over-optimistic view of the availability of external gas supplies contained in the 2003 Energy White Paper?

Lord O'Neill of Clackmannan: My Lords, does my noble friend agree that there are other aspects to this problem, including one of storage? We have an oscillation in demand for energy and we have wholly inadequate facilities for the storage of oil and gas in this country. We do not yet have targets laid down by government as to what we should or should not store and we do not have anything like the range of fiscal incentives that we need to take some of the heat out of the market. At the present moment there is little enthusiasm for the acquisition of such facilities and there is little pressure from the Government on them. It is foolhardy to think that in two years things will get better. The burgeoning demand of the Chinese and Indian economies is already distorting the market and has caused the Government to introduce their new energy review. We need far more than the gentle words that we are getting from the Government at this time on this issue.

Lord Howell of Guildford: My Lords, is it not an established fact that the Government have walked straight into this present crisis by a severe lack of foresight and planning? Was it not clear that there is masses of gas in the Norwegian sector of the North Sea but the pipeline is not in place because the Langeled pipeline is not going to be ready for another two years? That could have been foreseen and avoided.
	Looking further ahead, is it not also the fact that our LNG facilities and terminals may be in place, but we have found to our dismay, that the LNG carriers, who are transporting the frozen gas, get on to the high seas and are then diverted to other markets by rival, higher prices—in particular three huge loads that went to America recently? It turns out that our long-term reliance on LNG from Qatar, Algeria and so on is not at all secure. We need a lot more planning and a lot more vigour from the Government on these issues.

Lord Davies of Oldham: My Lords, the Langeled pipeline will come into operation next year, so it is not quite as far away as the noble Lord indicated. There have been diversion of supplies on the high seas and we recognise the significance of that. He will appreciate that the Americans in particular, after the disasters on their southern and eastern coastline have of course become major importers of energy, to a much greater extent than could have been anticipated.
	However, we are addressing this issue and, as regards the security of supplies from, for example, north Africa, the issue lies in contracts which hold and we avoid the diversion of supplies which happened this year.

Lord Rodgers of Quarry Bank: rose to call attention to the role of the Law Officers; and to move for Papers.
	My Lords, when the noble and learned Lord, Lord Falconer, moved the Second Reading of the Law Officers Bill on 16 June 1997, it was one of the first Bills of the new Government. It was also his maiden speech and I believe that the noble and learned Lord was also the first Solicitor-General ever to be sitting in the House of Lords. In the course of his remarks, he thanked those colleagues who had welcomed him when he took his seat a month earlier and generously mentioned me as having said that I was not sure what the Solicitor-General did, but it was good to see him in the House. What I had tried to say, was that if we were obliged to have a Solicitor-General at all, I was delighted to see him there.
	I mention that as a preface to my remarks today, because behind the rather bland description of the Motion is a subversive proposal for removing the Law Officers from either House. This would bring an end to their dual role as both active politicians in either House, and what is called,
	"exercising their genuinely held independent views"
	as legal advisers to the Government.
	I am not a lawyer or a constitutional historian. If I refer in passing to recent and current affairs and to existing law officers, that is not my chief purpose. I am interested in the principle, irrespective of any administration or person. Under the rules for the conduct of balloted debates in the Companion the purpose is,
	"to provide a forum for discussion",
	and I hope that I will contribute in that spirit.
	The Law Officers Act 1997 says that:
	"Any function of the Attorney-General may be exercised by the Solicitor-General",
	so if I refer mainly to the role of the Attorney-General, it will probably embrace his deputy. Since earlier this year we have had an additional law officer in this House, taking her place on the Front Bench today—the noble Baroness, Lady Clark of Calton, the Advocate-General for Scotland. The noble Baroness's powers do not extend to those of the Attorney-General or the Solicitor-General. The Advocate-General, her website tells us,
	"has no policy responsibilities and works in a ministerial capacity as a lawyer".
	But we are told that in 2005 she was,
	"elected to the House of Lords"
	"elected" is a bit premature—and that among her interests is pension reform, which seems to involve rather more than legal advice. According to Hansard, the Advocate-General works in the Law Officers' Department but according to the Cabinet Office list of ministerial responsibilities, the noble Baroness, Lady Calton, is a member of the Department for Constitutional Affairs. Her name does not appear at all on the Cabinet Office list of spokesmen in the Lords.
	The noble Baroness, Lady Clark of Calton, made an admirable maiden speech on 24 October, in winding up the Second Reading of the Consumer Credit Bill. However, that seems rather odd, given that she apparently has "no policy responsibilities" and no speaking role. I make no personal criticism of any kind. The noble Baroness, Lady Clark, has a distinguished legal record in Scotland and at the English Bar. I say only that, despite some confusion of identity, as a member of the Government even the most junior law officer seems to have an inescapable dual role, as she had when she was in the House of Commons.
	Forty years ago, at the 1964 general election, 100 barristers were elected to the House of Commons—32 Labour MPs, 64 Conservatives and four Liberals—but by 2005 there were only 34. As the profession has increased its numbers fivefold and QCs have trebled since the 1960s, it is the pressures of work and the Whips that make it very difficult for Members of Parliament both to make significant progress at the Bar and to carry out their parliamentary obligations.
	A standard text on constitutional and administrative law by Phillips & Jackson says that the recent appointment of the law officers to the House of Lords failed to cause a stir,
	"presumably a reflection on the calibre of lawyers in the House of Commons, at least on the government benches".
	I said that when the noble and learned Lord, Lord Falconer, became Solicitor-General, he was the first holder of that office to sit in the House of Lords. Two years later, Lord Williams of Mostyn became the first Attorney-General in the Lords. Both had been leaders in their profession, as the noble and learned Lord, Lord Goldsmith, has been. I do not believe that two more recent Solicitors-General would ever claim any such comparable record, although, under the 1997 Act, both have been free to exercise the important, sensitive and highly charged functions of the Attorney-General.
	Nearly 30 years ago, the noble and learned Lord, Lord Archer of Sandwell, the then Solicitor-General, wrote a short booklet for the Fabian Society. It was a useful guide for laymen about the roles of the law officers. He said that if the Government's senior legal law officers were chosen from among practising barristers, it did not follow that they need also to be politicians. But in practice the law officers are members of the Government. They are party politicians with a political commitment.
	That is the heart of my concern. I will turn around the description of the noble and learned Lord, Lord Archer: the custom and practice in the United Kingdom is for the law officers to be politicians, but they are not required to be. In my view, the dual role of the law officers as Ministers, sharing collective responsibility within the Government and publicly advocating and defending their policies, then standing aside to give detached, independent advice to their clients—their own colleagues—is no longer credible, if it ever was.
	In the famous Campbell case of 1924, Sir Patrick Hastings was held to be a compliant Attorney-General anxious to do the bidding of his Cabinet colleagues, though it took nearly 50 years until the uncomfortable truth clearly emerged. In a different kind of case, as a new Member of Parliament I followed the debate in May 1963 over the Government's refusal to grant political asylum to Chief Enahoro. I remember Sir John Hobson, the Attorney-General, tied up in a knot in endeavouring to balance his dual role in both defending the Government with their backs to the wall, and exercising his independent legal advice.
	In 1964, the Attorney-General—now the noble and learned Lord, Lord Lyell of Markyate—needed to say of—

Lord Rodgers of Quarry Bank: My Lords, forgive me. I should say that in 1992 the Attorney-General—now the noble and learned Lord, Lord Lyell of Markyate—needed to say of the Maastricht Treaty that he was "independently and dispassionately" giving legal advice to the Government, a statement which did not end the argument.
	The legality of the use of force against Iraq has been and remains a major issue causing problems for the present Attorney-General. On 1 March this year, the noble Lord, Lord Skidelsky, again asked the Government to publish the full text of the Attorney-General's opinion. This arose from a recent claim in the Guardian newspaper that the Government had manipulated the legal justification for war and put pressure on the Attorney-General. The noble and learned Lord, Lord Goldsmith, declined, saying three times that,
	"my own, genuinely-held, independent view",—[Official Report, 1/3/05; col. 112.]
	Was that military action was lawful. Inevitably, that will not be the end of the matter.
	On a different matter, the noble and learned Lord wrote to the Independent on 22 October—seven weeks ago—about an allegation that he had bowed to political pressure not to prosecute a tragic shooting. In that he drew on what he called the classic statement made by the Attorney-General, Sir Hartley Shawcross, in 1951 about the independent role of the senior law officer.
	Those are only a few among a long list of occasions when the dual role of the Attorney-General of the day led to a challenge or provoked a political dispute. I am not saying, except in the case of Sir Patrick Hastings, that over the years the Attorney-General has abused his position. I do not know. I have the highest regard for those Attorney-Generals and other law officers I have known personally in either House. The fact remains that all too often doubt lingers in the minds of other politicians, the public and the press. It would be far better for the law officers to be happily outside government as they are in a number of countries.
	A visitor from, say, a former Soviet republic somewhere in the Caucasus is brought by the British Council to Westminster to learn about democracy. "Please tell me", he respectfully asks, "about the role of the Attorney-General". "His job", his host replies, giving him lunch in the House of Lords, "is to give his genuinely held, independent, legal advice to the Prime Minister of the day". "Then he must be a neutral figure, expert in law and above politics?". "Well, not exactly, he is a senior member of the government of the day, attending Cabinet and dealing with the sometimes irresponsible Opposition". The visitor is now looking a little puzzled. He says, "But who hires this talented man, looking both ways; is it Her Majesty or the Lord Chief Justice?" "Er . . . no, it is the Prime Minister". "But, forgive me, then who sacks him?" "The Prime Minister", says the host, "but occasionally he promotes him". "Thank you" says the visitor, taking a second glass of claret. "Your British democracy is reassuringly familiar".
	I beg to move for Papers.

Lord Morris of Aberavon: My Lords, I congratulate the noble Lord, Lord Rodgers, on initiating this debate. I fear, as he anticipated, that I will disagree with him in his conclusions.
	The office of Her Majesty's Attorney-General can be traced back to the 13th century, when charged with the responsibility of upholding the King's interests in the courts when the King himself could not appear. I am proud to have held that office. The office has changed substantially since the time when the noble and learned Lord, Lord Rawlinson, was able to say that he had prosecuted on each and every circuit save for Wales and Chester. The Attorney-General's department is where the roles of Whitehall, Westminster and the legal profession meet, and the demands of the government machine and statute are ever-growing. I confess that the problems of international law took a disproportionate amount of my time.
	The Attorney-General has a very wide portfolio—quasi-judicial, professional and political. The noble Lord, Lord Rodgers, said, "Why have him at all?", if I may paraphrase him. "Why should a politician preside over these duties?". In 1614, the other place resolved, when Sir Francis Bacon was elevated from Solicitor-General to Attorney-General, to accept Bacon's presence in that Parliament,
	"but never any Attorney-General to serve in the lower House again".
	That injunction was consistently broken for 385 years until I retired as Attorney-General, to be followed, for the first time, by two Members of your Lordships' House filling the role in succession.
	The reason for the absence of Commons Attorney-Generals at present is that the Commons has become so demanding that it is only with extreme difficulty that one is able to pursue a political career—including the demands of a constituency—and a legal career at the same time, with the time, care and attention necessary.
	The same problem applies in other professions; there are no captains of industry in the Commons or eminent trade union leaders. There are, fortunately, signs of an improved pool of legal talent there now.
	I believe fundamentally that the Attorney-General should be someone seriously involved, and experienced, in politics. I should very much prefer him to be a Member of, and accountable to, the House of Commons. That is in no way a reflection on present or recent holders of the office. If there is no-one of merit in the Commons, the Prime Minister has no choice but to elevate a practitioner of eminence to your Lordships' House and appoint him Attorney-General.
	Why has he to be accountable? In many respects he is just like any other Minister of the Crown, and subject to collective responsibility, he to other Ministers and they to him. However, because of those considerable areas where he is not acting as a Minister but exercising his own unique responsibilities as Attorney-General, he must be accountable somewhere. Such are his onerous tasks that I believe it is inescapable that he must be directly responsible to Parliament. That is what the noble Lord has not addressed.
	As Attorney-General, he is responsible for prosecutions, either those by statute that he authorises himself, or those by the Director of Public Prosecutions. Among many cases, I had to authorise personally by statute a prosecution under the War Crimes Act, although I had spoken and voted against the measure. I tried to approach the papers with the same care as if I were to prosecute it myself. That, of course, took many a long hour, as did many of the other cases I had to authorise. I was tempted to prosecute it myself. It was my field—I had been a criminal lawyer all my life—but I just could not visualise a scene where I could be away from my duties to the government machine for two or three months to do the case properly. It is no good opening a case and walking away from it. One had to do much more than that. As it happened, the case included a visit to Byelorussia. I regretted that, and I was sorry, but it was just not conceivable to be away for three months. Those are the current pressures of the government machine.
	In some cases, the Attorney-General has to exercise his discretion. There is no rule that every case has to be prosecuted. He decides, acting quasi-judicially, whether it is in the public interest to do so. He is on his own. It has been said that he may consult colleagues. I may be wrong, but I have no recollection of consulting anyone—or, indeed, of anyone canvassing me. Prosecution is an independent function, not a governmental one. Given this onerous role, has he not to be directly accountable to Parliament? An honourable Member may raise any prosecution that has taken place on the adjournment, and I well remember my noble friend Lord Campbell-Savours doing so extremely effectively. As Attorney-General, I replied, and rightly so.
	The Attorney-General is also the Government's principal legal adviser, and I happen to hold the orthodox view that the relationship between the Attorney-General and the Government in this context is that of a solicitor and client. It is an error, except in extraordinary circumstances, to reveal legal advice, whether it is that of the Attorney-General or of any other lawyer. He is the adviser to the Commons and to the Speaker. He advises on peerages, and advises the Sovereign in a personal capacity. Until recently, he was a member of the Commons Privileges Committee.
	Above all else, though, the Attorney-General is the guardian of the public interest. That sounds awfully pompous. He will intervene in the public interest in litigation between other parties. Some difficult medical cases come to mind. He may refer unduly lenient sentences to the courts. That is a really hot potato. Week after week, it demands a lot of the Attorney-General's time, particularly in cases of causing death by dangerous driving, where there is considerable family anguish because of the loss of a dear one. No amount of punishment can bring back the lost member of the family. The help of an MP is enlisted and he can raise the matter on the Floor of the other place. As a lifelong politician/lawyer, I would not wish to lose that kind of accountability.
	Every Attorney-General in his time attaches a degree of controversy. But over the centuries, the office has weathered the storms. A senior legal adviser once told me, "If you are not in the news as Attorney-General, you are doing well". Turn the Attorney-General into a paid official, however eminent, but who is not a practising politician and Member of either House, and you lose the vital link of accountability. The office has been entrusted to the Attorney-General, and it his duty to carry out that role.

Lord Maclennan of Rogart: My Lords, can the noble and learned Lord say whether he sees a principle that makes it appropriate for the Attorney-General to be sitting in one House of Parliament, but not the Lord-Advocate, the Scottish law officer who has not identical but largely comparable powers? Why one constitutional principle for England and Wales, and another for Scotland?

Lord Morris of Aberavon: My Lords, if my memory serves me correctly, for many years when I was in the other place, the Lord Advocate was not a Member of either House. I fear that that problem arose because no Scottish lawyer has succeeded in winning a place in the lower House and had not been appointed to this place. It was because of a dearth of talent, I suspect, that such people had not been able to achieve political office.
	My time is running out. The Attorney-General in previous times was nicknamed the "bulldog of the Crown". When Lord Elwyn-Jones was Attorney-General he preferred to call himself "the corgi of the constitution". I would avoid animal parallels, but say that the Attorney-General is a constitutional safeguard of some importance.

Lord Morris of Aberavon: My Lords, I think I made that point earlier in that it is difficult to recruit eminent members of the legal profession to the House of Commons because of the demands. Now that there are signs of an increased pool of talent and I hope that again there will be an Attorney-General in the House of Commons. But the Attorney-General is not expected to be an expert in all fields. I was only a criminal lawyer, but I had the advantage of expertise, of Treasury counsel, and a whole range of sources of advice, if required.

Lord Mayhew of Twysden: My Lords, I, too, thank the noble Lord, Lord Rodgers of Quarrybank, and congratulate him on initiating this debate. It is important that the role of the law officers should be examined and ventilated. I declare an interest or whatever interest that I suppose may derive from the fact that for four years I was Her Majesty's Attorney-General and for five years before that I was Solicitor-General. Perhaps that interest is mitigated by the fact that I tried very hard to avoid becoming a law officer. I thought that it was a bourn from which no traveller returned. Fortunately for me I was wrong about that. I tried hard not to become one, and I certainly have no ambitions to become one again. That is not to say, however, that I think that the role of the Attorney-General should be revised. Difficult though it undoubtedly is, it suits our needs rather well and it certainly serves the public interest better than any alternative.
	It is a great privilege to follow the noble and learned Lord, Lord Morris of Aberavon, with whose speech I wholly agree. Nine minutes is a touch too short to attempt to cover the whole field, tempting though it is, and in particular the issue of the non-publication of the terms—the terms as distinct from the essence—of the Attorney-General's advice to his ministerial colleagues.
	I agree with the noble and learned Lord that the heart of the role of the Attorney-General is his accountability to Parliament. That is central. I sympathise with the difficulties which the visitor from the Caucasus would have in understanding the role of the Attorney-General, but if that had been explained in the way that the noble Lord, Lord Rodgers, described, he might have been reassured.
	Let us look at the prosecuting function of the state. At its head stands the Attorney-General. He is answerable first and foremost to the law, as the noble and learned Lord, Lord Morris, said. Surely no arm of the state is more invasive of individual liberty and the well-being of the citizen than this one. We have only to call to mind how even the receipt of a summons for the most minor of infringements is liable to cause real anxiety. The more serious the proceedings, the greater the risks and the fears, and they speak for themselves.
	I suggest and contend that fairness and sound judgment of the public interest must characterise the way in which the prosecuting arm of the state is used. It surely follows that whoever has ultimate authority over it—and somebody must have it—must be answerable to Parliament, unless we really are to depart from the fundamental principles of our democracy. I do not mean in the form of some official, however immaculate, giving evidence to a Select Committee. Parliament would never stand for that as being the limit of his accountability, nor would it swallow having some Minister acting as a rapporteur, the reader of a brief—a take-it-or-leave-it message vouchsafed from on high. Accountability for fairness and for soundness of judgment will be demanded in person, at the Dispatch Box, where the sharpest darts can come from behind and where you may find your future prospects suddenly rearranged.
	That is a very salutary feature of our system, but no system guarantees perfection. The noble Lord, Lord Rodgers, was right to refer to the Campbell case. What he said about Sir Patrick Hastings was true; that is, that you have to go back 80 years to find such an example. Sir Patrick agreed that no prosecution that seemed likely to be sensitive in a political sense should in future be started without the prior approval of the Cabinet—if one can believe that—and he pulled a prosecution that was proving embarrassing.
	I am glad to say that when all that became known, the Government fell. It was not a question of waiting 50 years. Very shortly after that, the Government fell, and the prospects of all their members, as well as those of Sir Patrick Hastings, were indeed rearranged. I suggest that that makes the point, rather than diminishes it. You have to go back 80 years to find such an example of an Attorney-General falling short of the required judicial standard. I wish to record at this point my complete confidence in the integrity of the present incumbent.
	Should someone else be answerable to Parliament? If it cannot be an official, for the reason I have suggested, and it should be a parliamentarian, then surely it ought to be a Minister because it is a Minister, rightly, who is answerable for the Crown Prosecution Service. We have moved away from the days when chief constables were the clients right through to, and including, the trial. It is a Minister who superintends the Director of Public Prosecutions and who is responsible for the code for Crown prosecutors.
	If it is not the Attorney-General, as it is at the moment, then who should it be? I cannot think that we would be very comfortable with any Home Secretary. Should the Minister responsible for the police now answer for prosecutions? He might have politically important targets to meet, perhaps demanding lower thresholds for prosecutions, and I do not think that that would be very agreeable. Nor could it be the Lord Chancellor, in whatever transmogrified form he may assume in future. He will be responsible for appointing the judges and he cannot go in for prosecuting as well.
	If it has to be a Minister, I suggest that it has to be the Attorney-General. It is he, after all, who, alone among Ministers, is responsible to the Crown, then to the law, and only then to his political colleagues. The problem perceived is that parliamentary accountability is not a sufficient safeguard for his propriety.
	In concluding, I will counter that, but, by way of background, I want to say that it does not stand alone. When I was Attorney-General, I told my officials that if my legal secretary—the number one—at any time believed that I, or an Attorney-General, was acting other than with proper quasi-judicial scruple, it would be his duty to go to the Cabinet Secretary and, through him, to the Prime Minister. That is the extent to which our constitution has evolved. I am sure that I was right, and it is not a negligible matter.
	As to the efficacy of having to answer to Parliament, I am well aware of the searching quality of that experience. If I may have half a minute's indulgence, I shall mention that on three occasions, in difficult circumstances, I went to the House of Commons to volunteer a Statement about my ministerial stewardship. To do that when in trouble and not to wait to be dragged there is always wise, but not always enough. Time does not permit a résumé of any of these episodes, but the relevance of each is that I was always very clear that it was my integrity, my competence and my judgment that were under scrutiny. The House of Commons knows how to do that very well, as does your Lordships' House.
	I was conscious of all those things and, although I suppose I must have passed the test, I had the best of reasons for knowing that the accountability of the Attorney-General to Parliament was for real and that it was, as it still is, very much for the public good.

Lord Armstrong of Ilminster: My Lords, I echo the gratitude expressed by the previous speakers to the noble Lord, Lord Rodgers, for initiating this debate. I, unlike him, am anything but learned in the law and we venture with rashness when we enter into a debate on the role of the law officers where it is predominantly lawyers who will be speaking. But I venture none the less because during the course of my career in Whitehall I became involved in affairs in which the law officers were also involved on a number of occasions, the two outstanding ones being the Westland affair and the Spycatcher business.
	In the first case, your Lordships will remember that a letter sent by the then Solicitor-General, who has just sat down, to the then Secretary of State for Defence was leaked to the Press Association. That was done without the agreement of, or consultation with, the Solicitor-General. The Attorney-General, who had just returned from convalescence, took the view that that was a serious breach of the rule of confidence, which is intended to protect the legal advice of the law officers to their colleagues in government. The Attorney-General insisted that the circumstances of the leak should be inquired into by the police, if not by the official machinery for inquiring into leaks.
	It did not seem to be a case for inquiries by the police. I already knew who had passed a copy of the letter to the Press Association. The interesting question was whether, and to what extent, the leak had been authorised, and by whom. I was not sure about the answers to those questions, and I undertook the inquiry myself. I made my report to the Prime Minister, and the main conclusions were reported by the Prime Minister in another place.
	It seemed to me that the law officers were standing on an important point of principle: the legal advice of a law officer to a Minister should be, and should continue to be, confidential. If a matter might lead to litigation, it must surely be right that legal advice to one party should not be disclosed to the other.
	Those events support me in my belief that the principle that the first duty of a law officer is to give the best advice he can to his colleagues on the application of the law in any given situation is correct. In preparing and giving that advice, as previous speakers have made clear, he is not subject to collective responsibility as a Minister. He is exercising sole personal responsibility for his advice. He is accountable to Parliament for that and, as the noble and learned Lord, Lord Mayhew of Twysden, has said, that is an important matter. However, he is not in the same sense accountable to his colleagues. He is, in my belief, entitled to receive and consider points and circumstances to which his colleagues may wish to draw his attention. He may even be entitled to consult them. He is not required, however, to pay any regard to the views they express or the points and circumstances they bring to his attention, if he considers them irrelevant to his considered legal advice. He must not allow them to affect his judgment of what his legal advice should be.
	I can remember no occasion, in my experience, in which a law officer has failed strictly and stoutly to observe the principle of his independent personal responsibility, and his independence of the Government as a whole. It would be in no-one's interests that the law officer should not strictly observe that principle. If he were not to do so, the value of his legal advice to his colleagues would be destroyed, and their confidence in him gravely undermined.
	So long as the principle is strictly observed, it does not seem to me that it matters that the law officers are also members of the Government. Indeed, I believe that, as previous speakers have said, that arrangement is positively advantageous. As a colleague, and one bound by the Privy Counsellors' oath—as well as by the Official Secrets Act—he can be trusted with information and intelligence that could not, perhaps, be properly or safely entrusted to any lawyer who was not a member of the Government.
	I shall not try to recount to this House every aspect of the Spycatcher affair. I am sure that your Lordships will be grateful to me for being thus far economical with the truth. Your Lordships will remember that the Government wished to prevent the publication of Spycatcher, which contained not only serious breaches of secrecy in relation to intelligence on security matters, but also many completely false statements—notably in the allegations of a conspiracy in the security service to undermine the Government of the day. Mr Peter Wright eventually admitted that that conspiracy was confined to one former member of the security service, namely himself. As the author lived in Australia and the book was to be published there, it was not possible to proceed against either under the Official Secrets Act, the jurisdiction of which is limited to the United Kingdom. So the Government were obliged to proceed by seeking an injunction in the Australian court for breach of confidence under the civil law relating to confidentiality. The Attorney-General at the time of course had a say in the preparation of the affidavit which was to be submitted to the Australian court. There were two questions: by whom should that affidavit be signed; and who should go to New South Wales to give evidence in support of the affidavit? It was considered that one person needed to be responsible both for signing the affidavit and for giving evidence.
	There were, and have continued to be, suggestions that that person should have been the Attorney-General. It was agreed in government that that would not have been appropriate: it was not for the Attorney-General to appear as a witness for the Government, answering questions of fact or intelligence. We could not ask the Director-General of the Security Service to undertake this responsibility because in those distant times the existence of the Security Service was still not officially acknowledged. It could have been a Home Office Minister or a senior official. In the end the Prime Minister asked—not instructed—me to do it. Without much enthusiasm I agreed that that was probably the right choice in the circumstances. The point here is that it would have been wrong for a law officer to do the job.
	It might have been possible for a law officer to be the lawyer who led for the Government in court, but that was not seriously suggested. It would not have been appropriate for a law officer to lead for the Government in civil proceedings in an Australian court. It would have been possible to apply to the Australian court for rights of audience for a member of the English Bar. That was seriously considered. In the end it was decided, for political and other reasons, that it was preferable to retain an Australian barrister. The main point here is that it would not have been appropriate for a law officer to give evidence to the Australian court on matters of fact and confidence.
	I have listened to the debate so far, and, looking back on my experience, my conclusion is that on the whole it ain't broke and we don't need to fix it. The Attorney-General has a clear place in the scheme of things, which has stood the test of time, and, provided that the law officers and their ministerial colleagues bear in mind the importance of their legal advice being independent, and of their being thus far outside the role of collective responsibility, the system that we have has done us pretty well in the past and will continue to serve in the future.

Lord Clinton-Davis: My Lords, I think that I am the only solicitor to be involved in this debate. I regard that as a great privilege. The view expressed by the noble Lord, Lord Armstrong of Ilminster, was highly interesting. He was a senior civil servant and has given the House a valuable insight into how the Civil Service looked at those important matters.
	We have five former Attorneys-General in this House at present and five former Solicitors-General. All have enriched the governments in which they have served, as well as the offices in which they have participated. In saying that, I am not being economical with the truth. Two of those former law officers are particular friends of mine: my noble and learned friend Lord Morris of Aberavon, who has spoken in the debate, and my noble and learned friend Lord Archer. I hope that those friendships will long endure, although I depart from some of the things that they said.
	However, none of them can compare with Solicitor-General Andrew Dymore, who served for no less than 18 years from November 1485. Some may say thank God that that precedent is not being repeated. Francis Bacon, as Attorney-General, once said that the office was,
	" the painfullest task in the realm".
	I do not think that he was thinking of being the Member for Hackney, Central at the time. Sir Patrick Hastings said that to be a law officer was to be in hell.
	Whatever may be the case, the House is indebted to the noble Lord, Lord Rodgers, for stimulating this debate. As has been said, the role of the Attorney-General has evolved over many centuries, starting as far back as the 16th century in its more recognisable form. For many years, the law officers were located in the House of Commons. Indeed, when I was there, it was thought impossible that they should be anywhere else. However, during the time that I have been here, we rejoiced in the fact that the noble and learned Lord, Lord Falconer, has been Solicitor-General. The late Gareth Williams, whom we all mourn and who was an excellent Leader of the House, was also Attorney-General. The noble and learned Lord, Lord Goldsmith, serves as Attorney-General in this House. All of them have established the highest possible standards, but not without controversy.
	I depart from the view that has been expressed today in certain measure. At present, we have an Attorney-General here and a Solicitor-General in the House of Commons. Both Houses have benefited from that. Both enable debates to be initiated about law and both are able to answer questions about the role of the law officers. This is the first time that a woman has been appointed as a law officer: I refer to Harriet Harman. She was a solicitor. That is also unprecedented in this context. That involved making a remarkable gesture to the profession of solicitor.
	Like both individuals and companies, the Government are entitled to the benefit of a legal adviser, whose advice they can take or reject. That legal adviser operates according to a well defined code and the Government, like the lay litigant, should in my view be able to receive legal advice in confidence. Of course, besides being titular head of the Bar, the Attorney-General is a Member of either House of Parliament. In that connection, Cabinet Committees perform more ably when they are advised by a law officer. We should take into account the fact that the law officer has other people advising him or her.
	While the Attorney-General may not be a member of the Cabinet, he is involved in a department's legal problems when special difficulties or matters of real significance arise—as I recall that they did when I was privileged enough to hold the office of Parliamentary Under-Secretary of State in charge of companies, aviation and shipping. In particular, I welcomed the idea of being advised at that time by law officers. The Attorney-General can also be involved in constitutional affairs which may touch on international relations, as we heard today from the noble and learned Lord, Lord Morris of Aberavon. Essentially, however, the Attorney-General makes up his own mind and is under no duty to obey anybody else—not even the Prime Minister. What he must do, as the noble and learned Lord, Lord Mayhew of Twysden, said, is to act in a quasi-judicial way.
	What, then, is the role of government vis-à-vis the law officers, apart from what I have already said? Primarily, it is to listen and to question. Should they disclose their opinions? My own view is that detailed advice should not be publicly revealed, although exceptions have arisen when it has been considered expedient so to do. Although something of a rarity, having regard to the fact that the law officers are there to advise the government, the only way that the government seek to justify that exception is that the government alone can decide whether the opinion of the law officers should be disclosed, either wholly or in part. In 1971, the substance of the advice tendered to the government about the export of arms to South Africa under the Simonstown Agreement was given. In two cases, involving the Scott inquiry and the Factortane case, the views of the law officers were given but the advice was not, and both cases amounted to judicial proceedings.
	Even so, I would wish to avoid the inevitable controversy. In other words, I would prefer a situation where under no circumstances would any part of the law officers' opinion, or a summary of that opinion, be disclosed. That is itself a controversial view, I know. We are in a bit of a mess at present, and the more speedily that can be resolved the better.

Lord Goodhart: My Lords, I thank my noble friend Lord Rodgers for introducing this debate which is a matter of constitutional significance. My views on this subject are personal and I am not speaking in my capacity of party spokesman on DCA matters.
	As most speakers have noted, we have had a law officer as a member of your Lordships' House only since 1997—first a Solicitor-General, then an Attorney-General. That in a sense is accidental because of the declining number of lawyers of stature in active practice in the House of Commons. As the noble and learned Lord, Lord Morris of Aberavon, said, that is due to the change in the nature of the role of MPs. Constituency business now takes up a large part of their time and it is impossible to act as a good constituency member and to perform the duties of an MP in the House of Commons and to conduct an active practice. It is very different from the old days when F E Smith would appear in the Royal Courts of Justice. When the court rose for the day he would walk down to the Palace of Westminster, stopping at the National Liberal Club on the way to relieve himself in the belief, as he alleged, that it was a public convenience.
	The second cause of change in the role of the Attorney-General is the Constitutional Reform Act. That is a little surprising because the Constitutional Reform Act says nothing whatever about the Attorney-General or his role. But by changing the role of the Lord Chancellor, it has indirectly and consequentially changed the role of the Attorney-General. The Lord Chancellor has lost his role as head of the judiciary in England and Wales and as a member of the Appellate Committee of your Lordships' House. He has also lost most of his role in judicial appointments. He no longer has to be a lawyer or a member of your Lordships' House. His role is now mainly as a departmental Minister. That increases the constitutional importance of the role of the Attorney-General as the senior lawyer involved in government.
	During the debates on the Constitutional Reform Act, I argued that the Lord Chancellor should not necessarily be a member of your Lordships' House. I now argue that the Attorney-General should be a member of your Lordships' House—indeed if a Member of Parliament at all.
	The main role of the Attorney-General is as legal advisor to government and on occasions as the government's advocate in court. He has a departmental role as head of the prosecution system—but that is a small department. It is constitutionally important to keep the prosecution system at arm's length from the government. A failure to recognise this brought down the first Labour government in 1924. The government's legal advisor must give wholly independent advice. To do so, he must be free from conflicts of interest and be as insulated as possible from pressure from the government.
	It is therefore plainly desirable that the Attorney-General should not be concerned about the impact his advice might have on the electors in his own constituency or about the impact his advice might have on his future ministerial career. I am not suggesting that any of the noble and learned Lords in your Lordships' House who have held that office—or any previous one since Patrick Hastings—has acted improperly in that respect. But it is a good idea to remove the risk wherever it can be.
	I am not suggesting that the Attorney-General should be someone approaching the end of his career—as is sometimes said of the office of Lord Chancellor. That would limit the office of Attorney-General to the relatively elderly. But the future career of an Attorney-General should be outside ministerial office—as a practitioner, as a judge or in some altogether new field. Those who argued during debates on the Constitutional Reform Act that the Lord Chancellor should be a lawyer and a Member of your Lordships' House were half right: they attached the right conditions to the wrong person—to the Lord Chancellor instead of the Attorney-General.
	As my noble friend Lord Rodgers said, there is a strong case for going further—arguing that the Attorney-General should not be a member of either House or indeed a governmental Minister but should hold an independent office appointed by the Prime Minister. I have some trepidation in supporting my noble friend's view in the face of speeches from three former Attorneys-General. As the noble and learned Lord, Lord Lyell, said, that is the position in several countries which have legal systems derived from the British system—or to be more accurate, the English system. Among Commonwealth countries, that is true in India and among other countries, in both Ireland and Israel. I have had the opportunity of meeting Attorneys-General from those countries. The arrangement appears to work well in all those countries. I am not yet convinced that this is desirable for the Attorney-General in England but my views are moving in that direction. It is at least a clearly arguable decision and well worth further study.
	The main argument in the other way is that the Attorney-General must be accountable to Parliament. I do not believe that is necessarily so. So far as the role of the Attorney-General as legal adviser to the government is concerned, that advice is given to the government as the executive and not to Parliament. The Attorney-General cannot advise both the government and Parliament on the same issue because that would be an obvious and unacceptable conflict of interest. Where accountability lies is here: the government have to be accountable for their decision whether or not and how far to act on the Attorney-General's advice. But it is not appropriate for the Attorney-General to be accountable to Parliament for that advice. After all, it is given as advice and not as a decision.
	There is a stronger case for saying that the Attorney-General should be accountable to Parliament for his decisions on prosecution matters. But even here there are arguments that that should not be so. These decisions are different from those taken by other Ministers because the Attorney-General must act independently from the government and is plainly not accountable to the Prime Minister for those decisions. If the Attorney-General is not accountable to the Prime Minister, then there is some doubt whether his accountability should properly lie to Parliament.
	The question therefore arises whether it is not at least equally appropriate and perhaps more effective that any checks on improper prosecution decisions taken by the Attorney-General—or decisions where it is alleged he has acted improperly—should be exercised by judicial review of his decisions rather than by Parliament. There is room here for future discussions. The issue that has been raised by my noble friend is important and I support it to a considerable extent. In future we will need to look at this matter in more detail.
	The figure nine has not yet come up on the Annunciator, so I am glad to sit down before my time is up.

Lord Morgan: My Lords, I begin with the proposition that this has been a great reforming and progressive Government in constitutional affairs. I regret the departure of my noble and learned friend Lord Irvine who has been an extraordinary figure in our constitutional history.
	One of the principles the Government have embodied and put across is the independence of the representatives of the law, the officers of the law. This was spelled out admirably by my noble and learned friend Lord Falconer in our discussions about House of Lords reform and the importance of segregating the legal from the political. The Lord Chancellor will be detached from the judicial system—indeed he need not be a lawyer at all. There will now be a new Supreme Court that is independent from Parliament and the taint of political prejudice or compromise.
	Yet we also have had in this valuable and fascinating debate the completely opposite principle—of legal officers, law officers, bringing these institutions together. They are both independent agents of the Crown embodying the public interest and, as my noble and learned friend Lord Archer of Sandwell observed in his Fabian pamphlet, party politicians with a political commitment in the cabinet are bound by collective responsibility. That is a clear constitutional principle.
	There has been criticism of this for many years. The first criticism I recall—apart from, no doubt, Francis Bacon—was of Sir Rufus Isaacs in 1912. He was the first Attorney-General to sit in the Cabinet but was unable to give a legal opinion on whether Cabinet Ministers had or had not benefited from the purchase of Marconi shares because, of course, he was one of them. Very shortly as a result—or a reward—he became Lord Chief Justice, inspiring a famous poem by Rudyard Kipling.
	This indicates the kind of complexities that can ensue. We have had variously Lord Simon, who was a Liberal, Lord Shawcross, who was Labour, and, most famously—nobody has referred to him—Lord Rawlinson, who issued a long statement about the desirability of avoiding the ambiguity of the role of the Attorney-General. Like the Civil Service and, as we saw in the Butler report, like the intelligence services, Law Officers should not be compromised by or subjected to political pressure. The Attorney-General's various roles are embodied in convention under our unwritten constitution—like Topsy, they just "growed"—and there is a tendency to view them perhaps in a somewhat Panglossian fashion; the best of all possible worlds.
	The law officers are responsible for the conduct of the criminal justice system, the Directorate of Public Prosecutions, the Revenue and Customs agencies and so on. Many of these activities have a very strong and intense political involvement. It seems to me almost impossible that this should not impinge on the role of the law officers, however distinguished they may be. As Mrs Thatcher indicated in a speech on Westland, there has sometimes been pressure to bring things forward and out into the open.
	But the main areas of contention historically have been where law officers have not taken action. We have heard much about the most famous Campbell case, which appeared to be one. Incidentally, I was sent by my noble and learned friend's office a splendid Sargent lecture by the Attorney-General. I agreed with every sentence of it except the sentence quoted from Dingle Foot, who got the Campbell case completely wrong. In a sense, Sir Patrick Hastings had sought out political advice. He had long talks behind the chair with Jimmy Maxton and listened to the very independent view of politics that he had.
	Sam Silkin is the most famous recent Attorney-General and appeared in the Gouriet case, of which we have heard. Much of the debate after Lord Denning's famous condemnation concerned, in a sense, a different point: whether or not Lord Silkin was liable and accountable to the courts or whether he was accountable simply to Parliament, which is what he argued. The main issue—the circumstances under which Lord Silkin reached his decision—was not really gone into. There were pressures on a government, which had a social contract with the unions, not to pursue a case where there had clearly been a tampering with the mail services by a union. There appeared to be political involvement but this was not in fact discussed.

Lord Astor of Hever: My Lords, I too am grateful to the noble Lord, Lord Rodgers of Quarry Bank, for initiating this debate. It gives me the opportunity to say something about the role of the law officers as I have observed it in practice, in relation to one particular area; namely, military justice, which my noble friend Lord Campbell has just spoken about.
	Let me say bluntly that I am unhappy about what I have encountered. It leads me to believe that, in this particular respect, the role of the law officers should be much more clearly defined and that it should be clearly restricted. I am in no way attacking the integrity of the Attorney-General. However, I am concerned that in pursuance of what seems to be a novel view of his powers, the noble and learned Lord has removed a case from the military justice system and referred it to the CPS. Is this not a policy of de facto extension of the law by executive decision? May I join my noble friend Lord Campbell and ask the noble and learned Lord, Lord Goldsmith, on what criteria does he base his decision that it is in the public interest to ventilate a military case in the civil jurisdiction? What are his criteria for defining when a case is exceptional and merits transfer?
	Moving the Az Zubayr case to the civilian jurisdiction and some other cases that have taken place in the military jurisdiction has caused consternation in the Army. Many officers, NCOs and soldiers are leaving the Army as a result. More are thinking and talking about doing so. My noble friend Lord Campbell rightfully mentioned morale. Morale has apparently now fallen so low that the Secretary of State has had to visit Basra in an attempt to stop the rot. Senior army officers are angry at what they see as politically motivated show trials, orchestrated long after the event, from the comfort and safety of their offices by people with no experience of combat.
	Soldiers are trained to kill. In Iraq, if a soldier waits a second too late, he may be killed; if he shoots a second too soon, he may now be prosecuted. Most of the time a soldier does not know who the enemy is and where the next bullet is coming from; an innocent situation will suddenly explode in his face. Take a British soldier, put him into body armour in 58 degrees centigrade and have mobs throw bricks and petrol bombs and then marvel at his restraint in not opening fire. If we subject the same soldier to a life without routine, working 18 to 20 hours a day, unable to sleep because of the heat during his four hours off, if we expose him to a significant casualty rate, continual, yet random, small-arms fire; attacks involving mortars, rocket-propelled grenades and improvised explosives the real question should be: how is it that the junior leadership can maintain such professionalism?
	Soldiers are therefore entitled to expect better legal and operational clarity from the Government that sent them to war. My noble and learned friend Lord Mayhew used the word fairness, which seems appropriate in this context. This Government seem to have lost touch with common sense. Between 1 November last year and 31 October this year 856 cases were referred to the Army Prosecuting Authority. This is political correctness gone mad. No one in this House excuses criminal acts. Soldiers guilty of misconduct, under arms must not be immune from justice. But if justice is to be done, it must be administered at the highest standard and without delay. It is disgraceful that the soldiers of the Royal Tank Regiment have waited nearly three years to clear their names. It seems to me that the noble and learned Lord's interference in that case has caused more delay.
	I noticed on the criminal justice system website that the Attorney-General is responsible for the trial management programme under which realistic court dates are given and stuck to. Will the noble and learned Lord use his statutory powers of superintendence to reduce those unacceptable delays? The noble and learned Lord the Attorney-General has superintendence over the three service authorities. What does superintendence mean? How does it differ from ministerial responsibility? Why have Her Majesty's Government not used the Armed Forces Bill to define in statutory terms the role of the Attorney-General in relation to the service prosecution authorities, in the same way as it is defined by statute in relation to other authorities? What part will the noble and learned Lord the Attorney-General play when the Bill comes to this House, both in debate and behind the scenes?
	In correspondence with the former Secretary of State for Defence, the noble and learned Lord expressed concern at the quality of military investigations. Clearly, neither the service police nor the prosecuting authorities are sufficiently funded to perform the duties that they are expected to undertake. Do the noble and learned Lord's superintendence powers give him the authority to do anything about that apart from writing to the Secretary of State for Defence? To whom is the Army Prosecuting Authority answerable and how is its performance measured?
	We gather that defence Ministers, against their better judgment, are being persuaded that we do not need to legislate for Armed Forces discipline every year. The Secretary of State for Defence confirmed in another place on Monday that the discontinuance of that rule was not proposed by the MoD, the Treasury or the Whips' Office. Is that pressure coming from the Attorney-General's office? We sympathise with the MoD; we must give our Armed Forces full parliamentary support.
	Finally, will the noble and learned Lord confirm that in his legal opinion the rules of engagement, and the soldiers' cards derived from them, conform with international law as it stands?

Lord De Mauley: My Lords, like my noble friends Lord Campbell of Alloway and Lord Astor of Hever, I want to focus on the increasing involvement of law officers in the application of the civil justice system to the military. I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing this debate and for giving me the opportunity to contribute. I declare an interest and speak as a recent commanding officer of a territorial regiment. Indeed, a year ago, the day before yesterday, I returned from a visit to Iraq to see my soldiers on operations—territorial soldiers who were involved firsthand in combat with the enemy there. I also make it my business to maintain close contact with officers at command level.
	I and many others have spoken in your Lordships' House of the case of Trooper Williams. That case was deeply worrying to many of us as it demonstrated a complete lack of understanding by government of their responsibilities for their soldiers—soldiers of whom they were asking more than many governments have asked in recent years. Although it may have been a senior officer who recommended that the Williams case be passed into the civil justice system, it was the Attorney-General who made the decision; furthermore, it was clearly the atmosphere created by that senior officer's political masters that put him in a position in which he felt he had no option but to recommend as he did.
	I want to associate myself with the words of my noble and learned friend Lord Mayhew when he said that he had complete confidence in the integrity of the present Attorney-General. It is not his integrity that I question. I want to repeat his words in a letter to my noble friend Lord Astor of Hever, following the Williams case, explaining his actions. He said:
	"My decision was purely based on the interests of justice and the merits of the matter".
	The Government's idea of "justice" seems to be the justice of making an innocent man wait two years with a charge of murder hanging over him. Their idea of the "merits of the matter" is the merits of a case in which the CPS decided to offer no evidence when it realised it might lose.
	While our Government concern themselves with the human rights of the man Trooper Williams shot—who had been transporting weapons likely to be used directly against our forces—they were apparently unconcerned with the human rights of their own citizen, Trooper Williams, which were clearly infringed by their actions. I say that, first, because his case had been dismissed by two separate commanding officers both of whom had taken detailed legal advice and were subsequently proven correct, and, secondly, because of the awful period of waiting that Williams was put through before finally getting justice. Justice delayed, it is said, is justice denied.
	The case of the five men from the Royal Tank Regiment waiting to know their fate over the incident at Az Zubayr is a further damning indictment of this Government's dithering and weak-mindedness. Those soldiers are still waiting, over two years after the incident, to hear their fate.
	In the Army today, the issue of rules of engagement is highly contentious. They must be simple because the situations under which they need to be followed are invariably confusing and frightening. The soldier must know those rules instinctively, and that in following them he will without question keep within the law. The Williams case knocked soldiers' trust in the rules of engagement and in the support they will get from the chain of command, and has made every commanding officer's job more difficult. Without complete trust in the rules of engagement and in the unflinching fairness of the justice they will face, soldiers may hesitate in the face of the enemy, and those they are trying to protect may die.
	Yet further misguided progress is being made in the Northern Ireland (Offences) Bill, under which it is now proposed that our own people may be subjected to trial for their actions under orders in the name of their country many years ago, while the terrorists who threatened them and murdered members of the civilian population are to go free. The world has gone mad, and this Government are leading the way. Judgment is, of course, needed. There are some valid cases; for example, bullying and violence against prisoners is unforgivable. But that very judgment is notable by its absence.
	It is clear that the senior army command finds itself now in an extremely difficult position, constantly looking over its shoulder and trying to second-guess what its political masters want of it. The British Army follows a principle that it calls mission command; put simply, that means "train your soldiers at all levels well, then tell them what you want them to achieve, not how to do it". Mission command requires mutual trust between commander and subordinate. There is now a clear feeling that the Government do not sufficiently trust the military chain of command.
	That has led to a lack of confidence among the senior leadership. Witness first the letter sent from the Adjutant General to the Chief of the General Staff to try to get Trooper Williams's case transferred to civil jurisdiction. That betrayed a profound insecurity among senior commanders about the lack of government support for the preservation of the military justice system; and witness secondly the new Armed Forces Bill, which removes powers from commanding officers to deal with the more serious cases, which they have proven themselves well capable of doing since the Army Act 1955, of which a recent example is the Williams case. Why undermine its position by changing the rules unless you are not prepared to trust it?
	War—and peace-making—is a dirty business. It involves the controlled use of force to achieve an aim. If you want the best people to do your dirty work, you must maintain an environment in which they can do that properly, without constantly looking over their shoulders. If you do not, when you need them most, you will find that they have quietly left to pursue an easier life in the civilian world, leaving behind an army of bureaucrats.
	This is a Government who, some have suggested, wanted a war because they had seen what the Falklands had done for the Conservatives. It was a hugely inexperienced decision, and it was, as explained by Colonel Tim Collins on BBC's "Newsnight" last night, compounded by a failure to plan for the aftermath, despite having had a dress rehearsal in Kosovo.
	Now that they have made such a mistake, they are failing to accept their responsibilities to the people who, in good faith, waged their war. This is undermining the system of military discipline and justice which is absolutely essential to the leadership of soldiers both in war and in peace.
	Those who have at heart the interests of our Armed Forces, our country and, yes, of the government want to see a change to a government who accept their responsibilities for their actions. They, and the law officers in particular, can only do this by supporting—rather than undermining—the military justice system and the chain of command.

Lord Thomas of Gresford: My Lords, I, too, express thanks to my noble friend Lord Rodgers of Quarry Bank for introducing this debate. I have been saddened that, save for my noble friend Lord Goodhart, the debate has not by and large led to any suggestion of change. Yet the office of Attorney-General has evolved through history, and there is no reason to assume that it has reached perfection in the body of the noble and learned Lord, Lord Goldsmith, and will not evolve further. History, as your Lordships are only too well aware, has not prevented the radical reform of the position of Lord Chancellor.
	The position of the Attorney-General has not been popular. It was written at the beginning of the 19th century that:
	"Of all offices in the gift of the Crown, that of Attorney-General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike".
	Contrasting the role of the Attorney-General with that of the Solicitor-General, the author went on to say:
	"The Attorney-General stands forward, almost alone as the public spy, informer and prosecutor . . . and the wrath of the parties and the dislike of the nation at large are levelled principally against him whilst the Solicitor-General fights under his shield and sometimes appears not to enter into the contest at all".
	It has not been the easiest of roles to fulfil. There has to be a tension between the duties and responsibilities owed by the individual who has held that position to the law, to the courts, to the executive, to Parliament, to his constituents—if he is a Member of the House of Commons—and to the political party to which he belongs. It illustrates the quality of the distinguished speakers in this debate that they have all walked that tightrope successfully.
	Reference has been made by my noble friend Lord Rodgers and others to the withdrawal of the prosecution against the communist trade union leader, Mr Campbell, who was charged with inciting mutiny in the Army, and how that led to the fall of the Labour government after a censure Motion. Since that time, the Attorney-General has ceased to be a member of the Cabinet and has sought to be what Lord Shawcross, described as "aloof and independent". There are three main aspects of his position. In an article by Diana Woodhouse which was published a year or two ago, she said:
	"At times the Attorney General is required to represent the government interest and at times the public interest. These are not always the same, as indicated in Questions of Procedure for Ministers, which states: 'In criminal proceedings the Law Officers act wholly independently of the government. In civil proceedings a distinction is to be drawn between proceedings in which the Law Officers are involved in a representative capacity on behalf of the Government, and action undertaken by them on behalf of the general community to enforce the law as an end in itself'".
	I will look at those aspects of the role of the Attorney-General, and suggest the possibility of change. My suggestions do not have the imprimatur of the Liberal Democrat assembly, meeting at some seaside resort; they are largely my personal views.
	The departmental responsibility for the Crown Prosecution Service, other prosecuting bodies and the Treasury solicitor, to ensure they deliver an effective and efficient service to the public and are properly resourced to perform their functions, draws the Attorney-General into areas of political controversy about the quality of the criminal justice system, and also into competition with other departments for cash. It is essentially an administrative role. I suggest that it is a significant area of administration which should be handed over to a Minister of justice—or whatever name one seeks to call a Minister; perhaps even Lord Chancellor in the current form—who is directly accountable to Parliament, as the noble Lord, Lord Morgan, said. I entirely agree with the noble and learned Lord, Lord Mayhew of Twysden, that such a Minister of justice should be co-operative with but completely independent of the Home Secretary and the Home Office, so that the administrative function could be put under a Minister directly accountable for administrative functions and for raising cash.
	The guardian of the public interest aspect is a quasi-judicial role which ought not to be influenced by political considerations at all. Of course we all know that there have been controversies over prosecutions in the past. I mention them without seeking to say on which side of the argument I would have been or am, but your Lordships will recall Sir Michael Havers—as he then was—in 1975 attracting a great deal of criticism for his refusal to prosecute companies that broke the oil embargo in Rhodesia. On the other hand, in the 1980s he attracted public criticism for his prosecution of Clive Ponting in relation to his comments on the sinking of the "Belgrano". I suggest that decisions as to criminal prosecutions should be removed entirely from the political arena, so that they cannot be seen to be subject to political influences, and placed squarely into the hands of an independent Director of Public Prosecutions who does not change with a change of government and is not subject to dismissal by the Prime Minister in a government reshuffle. To that person would come an enhanced role: the consent to prosecution should be transferred, as should the responsibility for intervening in private prosecutions or for entering a nolle prosequi where it is appropriate.
	There are other government prosecutions which should be under the control of the Director of Public Prosecutions as an independent figure. The noble Lords, Lord Campbell of Alloway, Lord Astor of Hever and Lord De Mauley, have spoken of soldiers serving in Iraq. As noble Lords may know, I have an involvement in those cases and am therefore constrained from saying anything about them. I can say that I do not think there should be pressure in Parliament, one way or the other, upon the Attorney-General as to whether they should be prosecuted. It should be an independent decision taken by a Director of Public Prosecutions. He should be answerable for his position to that same Minister of justice, who can be accountable to Parliament.
	I do not think that the Attorney-General is not particularly accountable to Parliament, as it happens, in criminal prosecutions, because if the case is proceeding he will always say:
	"It is sub judice, and I cannot discuss it".
	If the case has been concluded, then, as in the Williams case to which noble Lords have referred, the Attorney-General says:
	"That was my decision. It was a decision taken quasi-judicially, and that is it. You can criticise it if you like, but that is as far as I am going to be accountable for it".
	Of course I am not referring personally to the noble and learned Lord, Lord Goldsmith, but that is what every Attorney-General does in criminal prosecutions.
	There is a large area where the Attorney-General makes decisions in the public interest which may have a strong political flavour: the protection of the courts through contempt proceedings, the protection of public rights through relater actions, in injunctive proceedings and so on. Here he exercises his own discretion which is not reviewable by the courts. For that area, it is right that the Attorney-General—the person in charge of those decisions—should be both a lawyer and a politician and that he should be personally accountable for the exercise of those discretions to Parliament, probably in this House as it is presently constituted. There have been controversies about the exercise of the injunctive power and reference has been made by the noble Lord, Lord Morgan, to the Crossman diaries case and by the noble Lord, Lord Armstrong, to Spycatcher. 
	Finally, on the question of confidential advice to the government, the Attorney-General stands as the head of the government legal service which proffers independent advice to government Ministers. It is sought and given on a confidential basis subject to legal professional privilege. Surely, therefore, it is appropriate that the head of the structure should also be a civil servant, independent of government. In the Matrix Churchill case, the noble and learned Lord, Lord Lyell, was concerned to act on advice given to him by civil servants; I will not go into the controversy around that. But the controversy over the advice on the Iraq war depends on an implication, surely unjustified, that the Attorney-General was put under political pressure to structure his advice in such a way as to give cover and legitimacy to the Iraq war. No doubt it is unfair, but I suggest that the public perception is that he is "one of them". What happens is that the Government say, "We're acting on legal advice. We can't reveal it" and they deflect responsibility and shelter behind the shield of the Attorney-General who is not permitted to reveal his advice.
	I have suggested a certain number of possible routes to change the role of the Attorney-General, to deal with the functions in a different way and I again thank the noble Lord, Lord Rodgers, for giving me the opportunity of so doing.

Lord Kingsland: My Lords, I, too, thank the noble Lord, Lord Rodgers, for giving your Lordships' House an opportunity to debate this important issue today. As I understand it, the submission of the noble Lord, Lord Rodgers, together with those of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, is that there is a fundamental conflict between the independence of the Attorney-General and his or her accountability to Parliament. With great respect to those noble Lords, I suggest that there is a misunderstanding about the nature of that accountability.
	As has been said by a number of your Lordships, the Attorney-General has fundamentally two roles. First, he supervises the prosecutorial service and is responsible to Parliament for that. Secondly, he is responsible for giving independent legal advice to the Executive. In being accountable for his supervisory role with respect to prosecutions, he is not accountable for the exercise of his prosecutorial discretion. He is accountable for the independence of his exercise of the prosecutorial discretion. That is the essence of his accountability. Parliament is not asking him to be responsible for the advice that he gives: it is simply requiring him to act independently.
	That applies equally to his role as legal adviser to the Government. Parliament is not requiring the Attorney-General to be responsible for the content of that legal advice. He gives that advice independently. What he is accountable to Parliament for with respect to that function is his independence in giving it. Parliament rightly requires the Attorney-General to be independent, but has no right whatever to require the Attorney-General to exercise his discretion in a certain way. In my submission, in both those cases accountability underpins the independence of the Attorney-General; it does not undermine it. At the same time, it enhances the legitimacy of the role.
	I respectfully suggest to the noble Lord, Lord Rodgers, that his mistake—I apologise to him for suggesting that he has made a mistake in this case because he so rarely makes mistakes—is that he has not understood the role of constitutional conventions in relation to the relationship between the Attorney-General and Parliament. The noble Lord gave an illustration of a Russian visitor. What was missing from the noble Lord's explanation to the Russian visitor was the role of constitutional conventions—which guarantee the independence of the Attorney-General. We do not need these conventions to be written down in law because we all understand them. Indeed, every speaker has recognised the unimpeachable integrity of the present Attorney-General—a quality that has existed in all the Attorneys-General I can remember.
	I have a gentle but nevertheless relevant criticism of the Liberal Benches in that noble Lords on the Liberal Benches made exactly the same mistake in relation to the role of the Lord Chancellor. They thought, "Here is a personage who combines a legislative, executive and judicial role all in one. That can't respect the fundamentals of the doctrine of the separation of human rights". But it did because of constitutional convention.
	I now turn to that aspect of the Attorney-General's powers which relate to military issues—which was mentioned earlier in the debate most effectively by my noble friends Lord Astor of Hever and Lord De Mauley. My starting point in these remarks is an Answer by the noble and learned Lord, Lord Goldsmith, to a Question posed by my noble friend Lord Astor of Hever about the transfer of a case from the military prosecutorial hierarchy to the civil prosecutorial hierarchy. The noble and learned Lord said:
	"I have ministerial superintendence of both the Crown Prosecution Service and the three Service Prosecuting Authorities. In the case of the CPS, the role is statutory; in the case of the Service Prosecuting Authorities, it is non-statutory . . . Where an offence alleged to have been committed by a serviceman overseas is triable in either the court martial or the civilian courts here, it is ultimately for me to decide, as part of my constitutional and superintendence roles, whether the case should be dealt with in the military or the civilian system".—[Official Report, 6/12/05; WA 89.]
	What authority does the noble and learned Lord have for making that statement? Is it made on a legal basis or is it based on the constitutional convention? If it is the latter, when was it established? Can the noble and learned Lord tell us which previous Attorney-General first asserted that this power was his?
	It is clear that supervision entitles the noble and learned Lord to superintend the exercise of discretion by someone else, but it does not entitle the noble and learned Lord to substitute his own discretion for theirs. It certainly does not entitle him to exercise an executive role.
	In the Gower-Hammond report at paragraph 9, the legal secretariat to the law officers highlighted the nature of the Attorney-General's superintendence. It states that the task of the Attorney-General in relation to the senior prosecutorial authorities, when his attention has been drawn to a problem and his advice sought on,
	"significant features of potential interest or sensitivity"
	and on,
	"matters of legal novelty and legal and factual difficulty"
	is to give advice and guidance. It says,
	"This process of consultation will enable the Attorney-General to be consulted and to give advice and guidance on some difficult areas of the law.
	There is nothing there about the exercise of prosecutorial discretion, let alone actually taking decisions about a prosecution. In my submission, the noble and learned Lord, unless he has a better explanation that the one he has given so far, does not have the constitutional power to transfer cases from the military prosecutorial hierarchy to the civilian prosecutorial hierarchy.
	I have one further observation about the exercise of his power: in a Written Answer on 10 November in your Lordships' House, in relation to the referral to the CPS of the RTR soldiers, the noble and learned Lord said:
	"I considered the matter and with the agreement of APA and CPS, I decided that the case should be referred to the CPS because in the circumstances of the case, while there is no suggestion that the court martial would not deal with it impartially, justice would be seen to be done by ventilating the issues in the civilian courts".—[Official Report, 10/11/05; col. WA 111.]
	What on earth does "ventilating" mean? They could equally well have been "ventilated" in a court martial. Courts martial are covered by the press, and there is no reason why proceedings in a court martial should not be equally well "ventilated" as they are in a civilian court. Anyway, "ventilating" is an empty explanation for the exercise of this discretion that the noble and learned Lord thinks he has, although I doubt whether he has it.
	What concerns me most about the way the noble and learned Lord has exercised his discretion in these cases is a good way of concluding my intervention. There is a big difference between a soldier committing an alleged offence while taking decisions in operational circumstances and a soldier committing an alleged offence in non-operational circumstances. Where offences are alleged when a soldier is on operational duty, the circumstances he faces are very different from those he faces when he is acting off-duty. That factor ought to be taken into account when one considers whether the military prosecutorial hierarchy or the civilian prosecutorial hierarchy is the appropriate route down which to go.

Lord Goldsmith: My Lords, I start by congratulating the noble Lord, Lord Rodgers of Quarry Bank, on initiating this debate, and by thanking him for his choice of topic. I am also grateful to him for his courtesy in letting me know in advance the substantial issue that he wanted to raise.
	I am glad my noble and learned friend and fellow law officer, the Advocate- General for Scotland, has been able to join me on the Front Bench for this debate. She is the first holder of this office, created at the time of the devolution settlement. She works closely with me in advising on legal issues as they affect Scotland, and, like me, has a statutory role in the operation of the devolution settlement under the Scotland Act. I very much welcome her advice, and hope that noble Lords would agree that having someone able to consider matters of law particularly pertinent to Scotland is an advantage.
	To answer the intervention from the noble Lord, Lord Maclennan, who is not in his place, the Lord Advocate, now a law officer of the Scottish Executive, is in fact someone who sits in the Scottish Assembly, so there is no difference between the United Kingdom and Scotland there.
	This has been a thoughtful and stimulating debate. I am genuinely grateful to all noble Lords who have contributed. We are particularly fortunate to have heard from noble Lords who have themselves held office as law officers, but the contribution of all noble Lords is much appreciated.
	I have been privileged to hold the office of Attorney-General since June 2001. It is, as has already been said, an office in which the worlds of law and politics intersect. A range of views has therefore been expressed today on the role of the law officers, and how best this should be exercised. I want to start by saying how I see how I should exercise my role.
	The overriding principles by which I have sought to do my job are these: to give legal advice and take decisions based on a scrupulous approach to the law and to the evidence; where I am exercising my public interest functions, to act on the basis of an objective, dispassionate assessment of the public interest, without regard to party political considerations; and to act independently, fairly and with accountability. I agree wholeheartedly with what the noble and learned Lord, Lord Mayhew of Twysden, said about the significance of fairness in all that the law officers do. Those are not principles for which I take any credit. I believe they are the principles upon which my predecessors have consistently acted in the past. Indeed I often ask myself, when facing a difficult decision: how would one of those predecessors—some of whom I am privileged to see in this Chamber today—have dealt with that issue?
	One of my predecessors, Sir Robert Finlay, said at the beginning of the last century, when speaking of his responsibility for prosecution decisions:
	"In discharging that duty, the Attorney-General is exercising a function of an almost judicial nature . . . In the discharge of that duty, the Attorney-General . . . will be actuated by no respect of persons whatever".
	I agree, and seek to follow absolutely that approach. It is inherent in this role that it sometimes falls to me to take controversial or unpopular decisions. One academic writer put it this way:
	"It would seem that where politically contentious decisions are concerned, the Attorney-General is unlikely to escape criticism whatever [decision] he makes".
	I make no complaint about that—it goes with the job. When confronted with decisions, there is only one course to take: to ignore the political clamour and the media comment, and try scrupulously to reach the right decision on the law and on the evidence. That is the basis upon which I have sought to operate, as I apprehend all my predecessors have.
	Turning to the principal thesis of Lord Rodger's argument, what are the arguments for and against having law officers who are members of the Government and who combine, as he puts it, the role of lawyer and politician? This something to which I have given much thought. My own judgment is that the advantages of the current system outweigh the disadvantages. I am reinforced in that belief by having heard support for that proposition from three former Attorneys-General—who have between them enormously long experience of the law officers' roles; although I have not counted them up, it is a substantial number of years—as well as from a former Cabinet Secretary and others in this House. That those who have been most closely associated with the work that is done see benefits in the present system seems to me to be a most important consideration.
	Like the noble Lord, Lord Morris, I have reached the conclusion that it would not be right to turn this into a job for a paid official. To put it in the words of the noble and learned Lord, Lord Mayhew, the public interest is better served than by any other alternative.
	I have listened with great care to the different points—and, they will forgive me for saying, the not unanimously held points—in the three important speeches made from the Liberal Democrat Benches. I notice that the noble Lord, Lord Thomas, seemed to believe not so much that some of the things that I do should not be done by someone in this House, by someone who is accountable to this House, but perhaps that person should be a different person or have a different title. I was interested in the comments of the noble Lord, Lord Goodhart, as well as those of the noble Lord, Lord Rodgers, as he expanded his argument.
	I wish to develop the three factors that to my mind lead to the conclusion that the present system is in the public interest. First, law officers as Ministers have a key role in upholding the rule of law within government. Their advice carries greater weight because they understand and are part of the political process. Secondly, there are advantages in having law officers in both Houses of Parliament. We are answerable and accountable to Parliament for our work and are able to assist Parliament itself. The third consideration is that, as a Minister, I have been able to play a full role in the criminal justice system, particularly in reforming the prosecution service, which, as an outsider, I would not have been able to do. Let me develop those points within the time permitted.
	I will deal first with the law officers' role as legal advisers to government. Of course only a small proportion of the legal issues that face Government are referred to the law officers. But by definition these are typically the issues of the greatest legal complexity, political sensitivity or carry the most far-reaching implications. I have sought to operate in that field in accordance with the principles that, first, my advice should be independent and impartial; secondly, that my approach should be constructive; but thirdly, that I should be prepared to give unwelcome advice and to stand firm where that is called for. As the noble Lord, Lord Armstrong of Ilminster, said, legal advice is not a matter for collective responsibility, but the decision of the law officers.
	I conceive it as my job to help the Government achieve their policies, but only in a lawful and proper way, and where necessary advise against a particular course where it has fatal legal flaws. In that way the law officers are upholding their function of upholding the rule of law.
	Discussion of the law officers' advisory role is complicated by the fact that their advice, like any other legal advice, is privileged and confidential; and remarks have been made about that today. One aspect of my advice—that in relation to the legality of military action in Iraq—has been the subject of particular comment, but as all noble Lords have accepted, for which I am grateful, that my integrity is not in question in any sense in this debate, there is no need for me to go over old ground as to why that advice was independent and genuinely my view.
	There can be no greater responsibility for any lawyer than to have to take the decision on whether it is lawful for his country to go to war. That raises an important general point—the fact that the law officer plays that role shows the importance attached to the rule of law.
	Are the law officers then in a good position to give legal advice to their colleagues? In my view they are best placed to give that advice, precisely because they are in the Government and understand the system of government and process of policy formulation which precedes the request for advice.
	Occasionally, the law officers say no. That undoubtedly happens. Inevitably, those are not the occasions that tend to see the light of day outside Government, but they represent an important part of our function of upholding the rule of law. Would such decisions be better taken by someone who is a member of the Government or by someone who is outside? The noble and learned Lord, Lord Archer of Sandwell, in the same article, I think, to which the noble Lord, Lord Rogers, referred, said that this arrangement regarding the Attorney-General being a Minister is probably in the interests of the rule of law. Advice from a colleague in Government is less likely to be treated as impatiently as advice from a civil servant. Another writer put it more briefly by saying that Ministers are more likely to accept unwelcome advice because it comes from someone who they think is on their side, rather than someone who is perhaps there to impede the policy. I would strongly reject any suggestion that those inside Government or business are incapable of giving the most sincerely independent legal advice.
	There are other important ways in which the law officers help to uphold the rule of law within government. We play a key role in relation to proposed government legislation. We are members of the Cabinet committee on the legislative programme and see all draft Bills. Although we are not of course responsible for the detailed content of every Bill, we look particularly closely at those questions which raise issues of legal policy or legality. Parliamentary Counsel can and do refer to us questions which, in their view, raise such issues.
	There are other issues where my role as a law officer has been influential in upholding what I would regard as the rule of law, such as the former British detainees at Guantanamo Bay, which has been referred to. I took the role of negotiating for the Government. There were difficult issues of law and security. I am personally convinced that it would not have been possible to handle those discussions in the way I did, had I not been, and been seen to be, a member of the Government. Another example was the review of cases of infant deaths following decisions by the Court of Appeal in 2003—the convictions of Sally Clark and Angela Cannings, which led to my establishing a review which looked at nearly 300 cases, and which caused some to be referred to the Court of Appeal.
	The second issue is the question of accountability and the law officers' role in relation to Parliament. There is a law officer in this House. Like the noble Lord, Lord Goodhart, and the noble Lord, Lord Clinton-Davis, I regard that as an advantage. Regardless of which House we belong to, we take our responsibilities and accountability to Parliament very seriously.
	It goes beyond some of the points that have been made in this House. In a typical year the Solicitor-General and I answer some 400 Parliamentary Questions and reply to some 250 letters from Members of Parliament or noble Lords. We make ourselves available to Members of either House who wish to raise particular issues with us. Only yesterday, the Solicitor-General and I had a series of meetings with Members of Parliament, principally from Northern Ireland, concerning a particular prosecution last week.
	While there is a need to avoid any conflict in the advice we give to government, that does not prevent us from giving advice and assistance to Parliament when it arises. For example, noble Lords may recall that I participated in a debate on the Children Bill, on the law in relation to smacking; I have given evidence to the Procedure Committee on the sub judice rule; I have given evidence to the committee on the Assisted Dying for the Terminally Ill Bill to describe and explain the law relevant to that; and, on occasion, I advise the Speaker of the House of Commons on matters of privilege and procedure, for example. I want to underline one point which perhaps is not obvious. The fact that I am a Member of this House, and very proud to be so, does not prevent me from assisting Members of another place, although I have no right to speak in that House.
	Thirdly, I turn to the independent public interest role. As noble Lords have said, that extends beyond areas such as decisions or superintendence of decisions as to prosecution. Unduly lenient sentences were referred to by the noble and learned Lord, Lord Lyell of Markyate. That is an important and onerous responsibility, as the noble and learned Lord, Lord Morris, said, too. There are many examples, yet in all of these cases, we must act with scrupulous fairness and robust independence.
	I want to say something about the prosecution decisions, which were the principal subject of the interventions by the noble Lords, Lord Astor of Hever, Lord De Mauley, Lord Campbell of Alloway, and, to some extent, that of the noble Lord, Lord Kingsland. Let us be clear about the following point. It has been suggested in the past that some prosecution decisions have been politically motivated or driven by considerations of political correctness. Those suggestions are wholly without foundation. I have the highest regard for the professionalism and dedication of our Armed Forces. Nearly 80,000 men and women have served with the greatest distinction in the most recent conflict in which they have been engaged. But nobody would suggest that any of them are above the law. Where credible accusations of criminality are made, surely it is right that they should be investigated and, should the evidence so disclose, be prosecuted. Who takes these decisions? The decisions of the Army Prosecuting Authority are taken on objective consideration of the evidence which is provided by the special investigations branch of the Royal Military Police. Those decisions are not taken by those with no understanding of the reality of military life. The service prosecutors are members of the Armed Forces, with experience of active service. As superintending Minister, I am from time to time consulted about particular cases, but I have never instructed the APA to prosecute or not to prosecute a case. In recent observations, Major General Sir Michael Jackson has very clearly and categorically described even as calumny suggestions that any of the people who are involved in those prosecuting decisions have been motivated by thoughts of political correctness or anything of that sort.
	I have corresponded extensively with noble Lords, particularly with the noble Lord, Lord Astor. I have offered at least twice to meet with him and at least once to meet with other noble Lords who are interested in this reply. I have answered a number of Parliamentary Questions. Time does not permit me to answer all the questions except one—that of the noble Lord, Lord Kingsland—but I am happy to re-offer that invitation to meet if it would be helpful.
	The noble Lord, Lord Kingsland, asked about the statutory basis. There is concurrent jurisdiction in relation to certain cases, where the courts of this country have the right to try individuals for offences committed abroad. The House of Lords has made it clear that whether it should be the civil authority or the military authority is a matter for discussion and discussion, but that ultimately the decision rests with the civil authority, which for these purposes I am.
	On criminal justice policy and the role of the prosecutor, I emphasise that I firmly believe that had I not been a member of the same Government as my colleagues, I would not have had the same success in obtaining resources for the prosecutors—they have been substantially increased—or new powers or responsibilities for them. Like others who have spoken, I would not want to see the prosecutors under the purely political influence of a Home Secretary.
	This role has attracted controversy over the years. My noble friend Lord Morgan described some of those incidents, although he was wrong to attribute the Suez war to the Attorney-General. According to the Cabinet papers which have been disclosed, it was the Lord Chancellor of the day who gave the legal advice for that. We do not need to refight that battle.
	I conclude. This debate has been very helpful. I hope that it would assist a Minister from Russia who asked the questions which the noble Lord, Lord Rodgers, amusingly put. Like others, I take the view that if he were to read this debate and the contributions from all noble Lords, he would not give at the end the answer which the noble Lord, Lord Rodgers, suggested.

Lord Garden: My Lords, I, too, thank the Minister for repeating the Statement; although, given that he is the architect of it all, perhaps the Secretary of State was repeating his Statement. I noticed when I listened in the other place that there was—rightly—an even more fulsome tribute given by the Defence Secretary to the noble Lord for the work that he has done. I would like to add to that.
	I am also grateful for the early sight of the Statement. It is, as the noble Lord, Lord Astor of Hever, said, pretty complex, and I have not quite managed to finish reading the document itself since 1.20 pm.
	From these Benches, we welcome what appears to be a strategy which offers the prospect of a more coherent approach to what is always a difficult problem: the prioritisation of defence procurement. The United Kingdom Government spend a large amount of money on defence procurement every year. For the most part, it is not constrained by the normal international competition rules that affect other industries. This makes the temptations of political shaping of procurement decisions very great indeed. The Minister may well have already experienced the pressures that result when Members in the other place have to look at procurement decisions in the light of their constituency interests. That will be a continuing feature regardless of the strategy.
	I therefore welcome the strategy's clear set of priorities; number one: the operational capability and getting the technology to do the job; and number two: value for money. That is a virtuous circle, which prevents subsidies of inefficient production, which have in the past given rise to poor defence equipment, delays in delivery and fewer numbers as the costs rise. We must go for kit that can do the job at the best price. That makes our defence industries more competitive, and they can compete with others around the world.
	Of course, the Minister is not the first to advocate these sorts of ideas. The noble Lord, Lord Levene of Portsoken, when he was chief of defence procurement, implemented a different strategy aimed at the same sort of ideas. When he left, vested interests took over. The right honourable Alan Clark, when he was holding the Minister's post, had an innovative approach to stopping duplication in procurement through vested interests—I remember it well. Most of the projects which he cancelled were put back in place once he had gone. So I caution the Minister that he has a very difficult path ahead of him, and we wish him well as tries to get the right equipment at the right price delivered on time for the military. That must be the aim we are all after.
	Yesterday, there were two Written Statements from the Minister. Both had some import towards today's Statement. One was the MoD's annual performance report, which is a very good document and I commend it to the House. I think it unfortunate that a single copy is placed in the Library, rather than it being available to your Lordships in the Printed Paper Office. I suggest that it needs wider distribution. Target 2 in that document assesses the UK's contribution to conflict prevention, and shows the range of activities in the 12 assessment areas we are now dealing with. Target 6 looks at equipment procurement achievements and reports that we are still in the amber light area; there is still slippage going on there.
	The other Written Statement, referred to by the noble Lord, Lord Astor of Hever, on the way for the carrier industrial arrangements, was obviously necessary before today's Statement and the launch of the defence industrial strategy. On the alliance agreement, the six partners, BAe Systems, VT, Babcock, KBR, Thales and the MoD are stated to be sharing the risks and the rewards. In a way that is the first test of the Minister's new defence industrial strategy. Yet it carries real risks if one member starts playing off against another, as we have seen in the past. While I do not doubt that the Minister believes sincerely that he has sufficient incentives—sticks and carrots, if you like—in place to ensure co-operation, what happens if the alliance arrangement for the carrier does not succeed in the way he expects to it?
	We will come back, I hope, to the strategy document after we have had time to study it, as the noble Lord, Lord Astor of Hever, suggested, by having a full debate in the new year, which we would all welcome. I would be interested in the Minister's views on three aspects of this strategy and how changes will affect it. The first is the changing strategic context. The changes in the world situation are much faster than the procurement cycle. We are still taking delivery of platforms that were designed in the Cold War. Since then we had the SDR in 1998, the rise of international terrorism and 9/11. So the situation changes very fast. How will the strategy react to those sorts of changes?
	The second change is on the industrial scene. We get rationalisation, which, indeed, the strategy looks for. Industries react to the requirements of promoting shareholder value—a different agenda from the Minister of Defence. The Statement talks about industries as though we still have British national defence industries. We do not; we have international industry, some of which have their brass plates in London and some of which have them elsewhere. They rationalise, merge and move overseas. We are subject in some cases, even with British industries, to the constraints put on us by other governments; and we have the problems of the United States Congress in terms of its great sensitivity to any technology transfer when it moves out of the United States to elsewhere. How will the strategy react to that?
	The third question is the most difficult. I notice with some amusement that the front page of the Defence Industrial Strategy—I think for the first time in a defence document—has a picture of the Chief Secretary to the Treasury. I suppose, as we say, it is better to have him in the tent doing whatever he is going to do rather than outside. That of course does not guarantee that the Treasury will continue to provide adequate resources. One of the problems is that if we lock ourselves into a defence industrial strategy, the flexibility elsewhere in the defence programme is reduced if, in order to promote industrial interest, there is ring-fencing. How will that balance be achieved?
	The Statement does not refer to Trident replacement, nor, I think, does the strategy. That aspect is quite important, and, doubtless, the Minister has given it some consideration. Perhaps he could let us know whether that is fed into the thinking.
	I would like to deal rapidly with one aspect which it seems to me shows the difficulties of this approach. In the Statement there is a section on helicopters and in the Defence Industrial Strategy section B5 deals with helicopters. It is understandable that the Minister is looking for AgustaWestland partnership arrangements to give a sustained helicopter servicing capability into the future. That in turn means he must focus his helicopter money into things like Lynx and Merlin upgrades, which are, in the new descriptions used in this book, the attack and find capabilities, and not the third capability, which is the lift capability. We have previously had exchanges on the question of how we can provide that heavy-lift helicopter capacity for Iraq, Afghanistan, for UN operations, for conflict prevention and for humanitarian relief. We cannot provide it if we are putting all our money into attack and maritime helicopters in order to promote an industrial strategy. So what I see is that, even at this early stage, we are shaping the future of our operational requirements around an industrial strategy.
	There is one other absence in the Statement which I must note. That is, there is no mention of work with the European Union; there is some with the United States. Given the development of the European Defence Agency, was the European Defence Agency was consulted, is it happy with this document, or are we going to it to it as a fait accompli?
	There are so many more questions that need to be answered, and I fully support the request of the noble Lord, Lord Hever, for a full debate in the new year. I think that it could be very valuable. This is not a party political issue; this is the way forward to get a good defence capability. I end by again congratulating the Minister on an extraordinary piece of work in such a short time.

Lord Drayson: My Lords, I thank noble Lords for their expressions of support, for which I am grateful. It reflects that we have an opportunity to strive for consensus across the House. There are many aspects of defence industrial strategy upon which we agree. This is something which we can build on. I note the request for a full debate on this. I absolutely welcome the approach noble Lords are taking in their wish to go away and digest the document—it has 140 pages. I promised people a gritty document and every word that is in this piece of work is there for a reason. So I thank noble Lords for that. I fully understand their request for a debate. They will be aware that arranging a debate is a matter for the usual channels. I hope that the usual channels come together to arrange such a debate.
	The noble Lord mentioned that Defence Industrial Strategy will require significant change within the Ministry of Defence. He is absolutely right. I am personally ensuring that that change takes place. Noble Lords will see in section 3, which focuses on driving forward the defence industrial strategy and its implementation, that we have committed by May of next year to have come up with a programme of action to take forward its implementation within the Minister of Defence. I will ensure, as we go forward, that the department ensures that actions taken which are not be consistent with the defence industrial strategy will be raised up to ministerial level.
	I turn to the aircraft carriers and some specific questions the noble Lord asked relating to the announcement made yesterday and the maritime aspects of the DIS today. With regard to French progress, it is clear—we reiterate what the Secretary of State has said many times—that the potential opportunity to work together with the French on the aircraft carriers will not delay the UK ships. We can see the way in which we made the Statement yesterday reflects that. Equally, we have an innovative approach to bringing the new aircraft carriers into service, we are linking that with the management of the existing carriers in service and are asking for a single deal from industry for both the through-life support of the existing carriers—we will dovetail that with the new carriers—and the through-life support of the new carriers, together with their acquisition. That gives us the opportunity to manage that overlap very well indeed. We do not see the need to make any changes to our present plans relating to the out-of-service dates or the plans which we have for the existing carriers. But we have put in place a commercial structure to manage this very well, to deliver us value for money and to align people's interest to give us what we want.
	I welcome noble Lords' comments emphasising that the defence industrial strategy is about setting out that defence needs must come first—we owe no less to our Armed Forces—and that value for money must come next. As the noble Lord said, we can get into a virtuous circle with industry if we do this. We have a particular opportunity in this country because we use our kit, have a successful industry and are good at the collaboration. If industry is able to align itself to meet the UK's defence needs, it will have kit that will be highly exportable in the future. So this is both an opportunity for industry as well as delivering what we want in the Ministry of Defence.
	I have taken on board the noble Lord's point about the wider distribution of the performance report yesterday. I will see what can be done about that. I have noted the point about the risk that alliance incurs. The alliance, and the other partnering arrangements that we are putting in place, are one tool in the toolbox for our contractual relationships. They will be no less robust. We will ensure that we have the necessary clauses within the contracts to manage where people fail to perform. Those partnership arrangements give us the opportunity to manage potential monopolies well, but in a robust, tough, businesslike way. That is the approach that I will be leading within the department.
	The noble Lord asked for my views on three particular aspects. First, the changing strategic context is central to all of our thinking. The speed of change in terms of technology and globalisation of the industry and the nature of the threats—the emergence of new threats while having to meet more traditional threats—faces us with a significant challenge.
	We are approaching that challenge by ensuring that we have more flexible and adaptable equipment and that the design of and thinking behind that equipment allows us to change its characteristics and what it can do as the threat changes. We are also changing our procurement processes. At one end, we are good—and the data show that we are good—at urgent operational requirements. We are less good at longer term projects. We need to bring the longer term projects closer to our performance on UORs. That means taking into account the need for faster upgrades and shorter product life cycles within the life of a platform. We need to encourage industry to be good at that. We need to be good at managing that within the MoD.
	We regard the strength of the UK's pragmatic position in its international collaboration as something on which we need to build, but we need to learn from some things that have happened. We do not want to enter into any form of protectionism. We are relaxed about where the shareholders live; but we are not relaxed about where the intellectual property (IP) or the design authority is. It is the location of the IP and our access to that IP that allows us to ensure that we can maintain and upgrade our equipment in future. We need to make changes to how we manage our intellectual property. We need to encourage foreign-owned companies to invest, especially in system, engineering and upgrade skills and have clarity about the ownership of IP.
	I am grateful to the noble Lord for pointing out the level of joined-up government that the White Paper represents. As my right honourable friend the Secretary of State said earlier, noble Lords will have noticed that the Chief Secretary to the Treasury was smiling in his photograph in the document. That is a good sign. However, we also recognise that the defence industrial strategy must, over time, work within the normal operation of government. We have set out in the document the process that we will use to do that. We recognise that it must go through the normal spending reviews and we have set out that process for industry. Again, we intend to give industry the clarity and transparency that it needs to make the investment decisions to give us the affordability that we want from equipment in future.
	The document mentions Trident in the context of our nuclear deterrent and submarine build. It points out the importance for us of maintaining the capability through all aspects of submarine design, build and maintenance. It highlights the importance of frequency and drumbeat and the expectation that there will be a review of the replacement of Trident within this Parliament.
	The example of helicopters is key. I recognise that there is an issue concerning the balance between heavy-lift and other helicopter capability. We recognise that we must address that within our overall rotor-craft strategy and we are doing so. We are making the extra investment to enable us to do so.

Lord Russell-Johnston: rose to call attention to the practice of honour killings and their incidence in the United Kingdom; and to move for Papers.
	My Lords, it may sound a rather banal way to begin, but the principal driving force of my political life has simply been to try my best to provide comfort, release and hope to people who are unhappy or badly treated. I believe that it is a human right to live this short life that we have without fear or bullying or, worse, persecution and to be able, in our individual ways, to understand and experience the meaning of words such as joy and delight—not to mention security, independence and the freedom to choose one's way forward.
	The practice of so-called honour killing rejects all these concepts. It is a vile and cruel practice in which the victims are, not always but in the great majority, girls and women. They are accused of bringing shame on their families and their community by their behaviour. That can range from chatting to a male neighbour to rejecting a forced marriage or having sexual relations outside marriage. It includes rape; rape for which the girl is blamed. It is rooted in concepts of male dominance and the right to expect total obedience from the female—concepts going back to the Stone Age.
	According to the United Nations, which has done a series of reports on this question worldwide, some 5,000 women are killed to cleanse honour each year. That, being based on official figures, is almost certainly a considerable underestimate. Neither does it take account of suicides. They are high among Asian women; that is also true in the United Kingdom. In England and Wales, for example, between 1988 and 1992, of 1,979 women between the ages of 15 and 34 who killed themselves, 85 were Asian. That figure is nearly double their proportion of the population. Significantly, it was found at the same time that the situation was reversed for young Asian males, who were less at risk than European men.
	So-called honour killing is a practice originating primarily in Middle East or near Middle East countries; Pakistan, Turkey—notably the eastern Kurdish area, which I have visited and where I have spoken to women campaigning against the practice—Iran, Iraq and Jordan, which, to its shame, has laws mitigating punishment for such killings. It is now being recorded in European countries with sizeable immigrant populations such as Germany, where a trial is underway in Berlin, France and the Netherlands as well as the United Kingdom. My first question therefore is to ask the Minister whether there is any co-operation at European Union level in respect of ways to reduce and eventually to eradicate this evil.
	I am not an expert. I came to the issue quite a long time ago, through a debate in the parliamentary assembly of the Council of Europe on a report on so-called honour killing drawn up by Ann Cryer, the Labour Member for Keighley. I want to pay the warmest tribute to Ann, who has campaigned against this malevolence not just in faraway Strasbourg but among her own constituents, among some of whom it is accepted.
	Much later, I read an article in the Evening Standard by Diana Nammi, who runs the Iranian and Kurdish women's rights organisation in Islington, where she helps women fleeing from abuse. I contacted her, which led to our debate. She is a lady much to be admired for what she does. Then I met the brave and resourceful Jasvinder Sanghera of Karma Nirvana, the Derby refuge where they see 60 girls each month seeking help from abuse. I have visited Bradford, meeting Philip Balmforth—probably the most experienced United Kingdom police officer in this field. Here in London, Detective Inspector Brent Hyatt was hugely helpful. He, by the way, is on honeymoon; I am sure we would wish him every happiness.
	The more that I have explored the question, the more my horror has grown and, indeed, my anger. Let me give noble Lords some examples. First, the issue of honour killing in the United Kingdom was really first brought to the fore in the media through the trial of Abdalla Yones, a Kurdish immigrant who killed his 16 year-old daughter Heshu. She was a lively, intelligent girl; full of fun, she liked western dress and customs and did not want to accept a forced marriage. She rebelled against her father and one day he stabbed her to death. I saw pictures of it. She had over 40 stab wounds, and doctors estimated that she did not die at once, but lay for 15 minutes or thereabouts in the greatest pain until she died from loss of blood. Her father, in pursuit of his well-prepared cover story, said that an intruder had done it all. He jumped over the balcony and injured himself. However, on recovery he was brought to trial and is presently serving 10 years in prison.
	Three things emerged from that case. First, the judge said in sentencing Abdalla Yones that he took account of cultural traditions in passing sentence. That is wrong and should not be allowed. Murder is murder and cruelty is cruelty. The cultural tradition which we respect is the human rights tradition. Perhaps it is, to some extent, being corrected now; I noticed that, in a case only three days ago here in London, the judge said something very much to that effect. Secondly, what emerged was that, as far as I know, no Kurdish communal nor Kurdish Muslim religious leader condemned the murder. What is the Minister's experience of community and religious co-operation in this question? Thirdly, the girl's brother and mother defended the killer husband and lied persistently in his support. We must realise that the practice is deeply ingrained in the mindset of some.
	To underline these three points, let me instance the case of Rukshana Naz in Derby in 1998. Rukshana was forced into marriage and became pregnant. Her mother suspected her of having a relationship outside the marriage which could have been, though it was never proven, the cause of the pregnancy. When seven months pregnant, the mother gave the girl a choice: abort the child or be killed. The girl refused to abort. She was taken to a cellar where the mother sat on her legs while her younger brother strangled her and a still younger brother watched. The mother was let off with manslaughter, which follows the pattern I referred to in the first case. The son got life. Very often in these cases it is the youngest in the family who is chosen to do the crime because the youngest one will be given the lightest sentence. Can the Minister ensure that there is exclusion of mitigating circumstances of this kind? It is common in such cases for a family conclave to be involved. The whole family, often dominated by the father or husband, makes the decision. All the family members are thereby involved in that decision and should take some responsibility for it.
	Thirdly, I take the case of Jack and Zena Briggs. I have met Jack and have spoken to Zena on the telephone. They met, fell in love and married, and later wrote a book together. The introduction is written by John McCarthy, whom all noble Lords will remember. For 14 years they have lived on the run, hiding and moving from one safe house to another. They are never sure if it is safe. They are being hunted. This is happening in Britain. They are the target of bounty hunters, people who are willing to commit such killings on behalf of the family for money.
	I have spoken for 11 minutes and time is running out. I shall reach some conclusions and ask a few further questions. First, I think that forced marriage should be made illegal. I know that the Home Office is taking evidence on this question and that people such as Mr Balmforth, who are highly knowledgeable in the field, oppose it because they think that it would not be effective. Last week the noble Baroness, Lady Rendell, raised the issue of genital mutilation. I am pleased to see the noble Baroness in the Chamber. I do not think that the fact that no prosecutions have yet been instigated is an argument against outlawing the practice. The same, in my opinion, applies to forced marriage.
	I turn to a very good leaflet produced by the Foreign Office entitled Forced Marriages Abroad: your right to choose. It states:
	"If someone is forcing you into a marriage they may be in breach of the law".
	I do not want to see the words "may be". It should say that they are in breach of the law. That would give strength to a girl wishing to seek help. I understand that over the past few years some 140 girls have been preserved from this situation by the actions of the Foreign Office.
	Incidentally, I am told that some schools in Derby in particular, but perhaps elsewhere as well, where this leaflet is not distributed for fear of causing offence. That is wrong. The leaflet should be freely available. While on education, action should be taken to stop the removal of girls from schools, sometimes before they reach the age of 16, to be taken to another country ostensibly for a holiday but in reality to be forced into marriage. Over the past 10 years in Bradford, 150 Asian girls have simply disappeared from the education register while the numbers for Asian males have remained constant.
	I know that great efforts are being made. Guidelines are being produced by the Home Office and the police, but there is no actual duty to implement and, I understand, no effective method of monitoring the practice. More work is needed among the police, social services and teachers. Andy Baker's work, which has been tremendous, must not be allowed to slide. Moreover, my statistics cover England and Wales, but it would be interesting to know what is happening in Scotland and Northern Ireland. What is the total figure for the United Kingdom? I am told that last year some 12 honour killings took place.
	Direct and open discussions should be instigated with communal and religious leaders to seek their active co-operation. More resources have to be made available to help girls in flight from the fear of abuse or worse. Secure accommodation must be made available to them, not hostels, and perhaps counselling support. We are presented here with the maintenance and defence by immigrant communities of abhorrent practices which run contrary to the values we have evolved and hold dear. As a liberal it might be said that I am soft on those seeking asylum from prosecution, but I am not soft on the importation of barbarism, of which there should be zero tolerance.
	I end with a quotation from Kofi Annan:
	"Violence against women is perhaps the most shameful human rights violation, and it is perhaps the most pervasive. It knows no boundaries of geography, culture or wealth. As long as it continues, we cannot claim to be making real progress towards equality, development, and peace".
	I beg to move for Papers.

Lord Giddens: My Lords, I begin by thanking the noble Lord, Lord Russell-Johnston, for initiating this debate. It is only a shame that so few noble Lords have seen fit to contribute to it. The list of speakers looks a bit like all chiefs and no Indians, especially since the Minister will get to speak for longer than us other humble souls. But in my estimation the debate is much more important than might appear at first sight.
	A few years ago, I wrote a book on gender, sexuality and violence, and hence my interest in this topic. What sparked me to write the book was an incident during the first Iraq war in 1990–91. On the night of 26 to 27 February, the Iraqi army was retreating from Kuwait towards Basra. Noble Lords will remember that the coalition forces attacked a convoy of some 1,500 vehicles from the air. After that attack, the road became known as the "highway of death". We can recall the pictures of the charred bodies of soldiers in their trucks. Aside from the horror of the event, what interested me were the reports made by journalists who, three weeks later, went to look at those abandoned vehicles. They were not allowed on to the scene until then. They found that the vehicles were covered with graffiti written by the coalition forces. These graffiti were dominated by expressions of violence towards women, horrific statements about women and a range of extremely unpleasant and hostile statements about women—not about enemy soldiers but about women. I started to think about the relationship between violence and male sexuality.
	It is clear that violence and male sexuality are closely connected. Consider the use of rape in war, for example. Mass rape occurred most recently in the conflict in ex-Yugoslavia. Mass rape in conditions of war is not primarily an expression of sexual desire. It is driven by the desire to possess, it is driven by the desire to dominate and it is driven by the desire to humiliate. Much the same is true of individual rapes which are mostly not driven straightforwardly by sexual desire but by the desire to subjugate and humiliate. The Latin origin of the term "to rape" means "to seize" or "to take possession of". It did not originally have a sexual connotation.
	To cut a long story short, having looked at a lot of the literature on male sexuality and violence, I came to the conclusion that there are three core elements that occupy the interface between male sexuality and violence towards women. First, there is the wish—and indeed in traditional cultures, the expectation—of men to control women and assert their power over them. As the noble Lord said, other women sometimes connive in this power over women which men have traditionally enjoyed within the family.
	The second element is fear of female sexuality, which consciously or unconsciously is widely felt to be dangerous and which underlay many expressions of violence against women such as the persecution of witches in the middle ages. A constant theme of the traditional family is fear of the sexuality of women, especially young women.
	The third element that I thought to be important having surveyed all the evidence was the existence of the double standard in the traditional male-dominated family, the patriarchal family to use sociological jargon. In almost all cultures, the traditional family has a double standard of sexuality in which men are allowed a degree of sexual licence but women are not. Women are expected to be chaste, women are expected to be pure and they are expected to be so even after marriage, not just before. They are expected to be virtuous women in a way which does not have the same connotation for men.
	These three motifs are very visibly evident in honour killings. The phrase "honour killings" is plainly a misnomer—there could be nothing much more dishonourable than the acts that are carried out in the name of the honour of the family. Honour killings should be seen in the wider context of male violence towards women and the double standards which underlie such violence.
	All cultures in which honour killings are found are also marked by other forms of violence towards women, especially institutions geared towards the ritual humiliation of women. Humiliation and shame are ever-present emotions surrounding the context in which honour killings and other forms of violence towards women take place. As the noble Lord mentioned, it is true that there are some honour killings against boys and adult men, but they are very rare. Nearly all honour killings are directed against women and this is surely not incidental.
	We should not think of honour killings as being linked to non-western civilisations, cultures "out there" that are alien to our own western culture. That is not the case. In the west, honour killings have existed at least since Roman times where they are well documented. In Roman times honour killings were sanctioned in law. Later they became prohibited in law in the middle ages and afterwards. In Rome the paterfamilias had the right to kill an unmarried sexually active daughter or adulterous wife and we know from evidence that this was practiced widely in different phases of the Roman Empire. The practice seems to have lasted at least up until the 16th or 17th centuries in the west, in Italy and in other areas in Europe. For example, we have the documented case of Laura Lanza, Baroness of Carini in southern Italy, who was murdered by her father in 1563. Her crime was adultery within marriage. Her father murdered her. He served a short sentence of military service—service that helped his career—and he used that as a springboard to become even more affluent and successful in the local community. So he virtually escaped punishment altogether.
	When we think of these things as alien, we should also bear in mind our own legacy in Victorian times. Then, of course, you did not have honour killings but you did have its social equivalent. In Victorian times, a woman was still the chattel of a man. In law, a woman was the property of her husband and he had rights which the woman did not have. Unmarried women who gave birth to children—or, indeed, who were known to have a sexual relationship—suffered social death and ostracism. Even into the 20th century, the barbaric practice of locking-up such women in mental hospitals continued. You may remember seeing in the press a few months ago examples of women who had been in mental institutions for some 30 years up until about 10 years' ago. What was their crime? It was to have a child outside of marriage. So our society is by no means free of these tendencies.
	I remember that in my family, when I was a kid of about five or six, we had this Aunt Laura, who sat in a corner of the room at parties. She looked miserable and no one spoke to her. My mother explained to me, "Well, that's Aunt Laura. She's divorced, you know". At that time there was a social stigma attached to being divorced, even though her husband had left her and she had not left him. Of course, it was very difficult for wives to leave their husbands in those days. So our society is by no means free of the impulsions and imperatives which underline honour killings more generally.
	As the noble Lord, Lord Russell-Johnston, said, honour killings are a global problem today, especially in the more traditional cultures across the world. They have come to western European countries, some of which were mentioned by the noble Lord. In the UK, as we know from police work which went back through murders over a certain period, there have been possibly as many as 100 honour killings over 10 years. But this figure is unreliable for the reasons given by the noble Lord. There are pressures towards suicide, which would not figure in the statistics, and we know of cases where girls have been taken out of the country and murdered. So these figures are not reliable and are almost certainly an underestimate.
	Interestingly, in Germany the police have also been considering cases involving the murder of young women over the past few years since 1997. The police there calculate that there have been 45 honour killings in that country since 1997, although, again, the statistics remain problematic.
	A striking feature of the countries and communities where honour killing exists today is that they are predominately Islamic-based societies. I am sure that some people refer to the fact that honour killing is banned in Islam and that most Islamic clerics across the world speak out against it. However, I would argue strongly that the practice of honour killing has nothing to do with religion or is, at most, tangentially associated with religion. The greater incidence of honour killing in Muslim communities, in my view, is almost solely due to the fact that the traditional family is much stronger. These communities are much more embedded in tradition and custom than most communities across the world today and, as I mentioned, the traditional family has always been patriarchal; has always been based on control of women's fertility and sexuality.
	We know that even today there are honour killings going on in cultures which are non-Islamic. There are documented examples among Hindus and Sikhs, in some cultures in sub-Saharan Africa and, interestingly, because it brings it closer to home, in 19th century Latin America.
	What should we do? I do not dissent from any of the prescriptions proposed by the noble Lord because they seem to be the kinds of things we must do. We cannot any longer treat this as a cultural activity; it must be subjected to international law, to national law and to human rights.
	In conclusion, I have four practical proposals to offer. First, we have to improve our national cultural understanding of minority communities in our midst, and we know that the work of Commander Andy Baker of the Metropolitan Police has been very important in this regard. We need women's groups close to, or involved in, the relevant communities, to whom women who are threatened are able to turn. It is very difficult, but they must be groups who are sensitised to local community values.
	Secondly, we cannot tackle the issue of honour killing in Britain by concentrating only on Britain because it is essentially a trans-national problem. An important breakthrough was made when the district court of Stockholm became the first European court to sentence two men for honour killings abroad. It is an important precedent which other countries should gear themselves up to follow. I should like to see a stronger United Nations programme and even the possible consideration of a year when member states agree that the practice of honour killing should be totally eliminated across the world. It seems like a traditional illness, if you like. Some illnesses have been conquered. Why can we not conquer this one across the world? I believe that we can, through a concerted effort by the international community.
	Thirdly, the best medium-term protection against honour killings is the education of women and their detachment from the traditional family. People talk of globalisation. There is a process of globalisation going on, but the advance of women across the world is just as important a feature of globalisation as any other; it is a true global revolution in the position of women. It has not yet reached some of these traditional cultures, but it will do so. I do not have much time for the traditional family. As my noble friend Lord Parekh will probably remember, Edmund Leach talked in his reflections of the tawdry nature of the traditional family with its "tawdry secrets" as he described it. That is a very nice phrase. People speak of a return to Victorian values, which is ridiculous because the Victorian family embodied the very values that we must overcome if we are to liberate women from the wider spectrum of violence.
	In conclusion, I would argue that the position of Turkey has a crucial significance in this debate. Quite a few of the honour killings in Germany have been in Turkish communities. Turkey stands as a potential accession country to the European Union. It has passed new legal prescriptions from 2003–04. The first ever life sentences for honour killings in Turkey were given in 2004 but the practice still continues, especially in the south-eastern part of the country. Turkey needs to take the lead; it is a key country. As part of the condition of entering the European Union we should insist that Turkey makes not just a general commitment to human rights but a specific commitment to eradicate this practice.

Baroness Cox: My Lords, I join other noble Lords in warmly congratulating the noble Lord, Lord Russell-Johnston, on introducing this debate on an issue of growing concern and great sensitivity. As he himself indicated, both honour killings and forced marriages are manifestations of honour-based violence, which mainly affects women and girls in communities around the world where acceptable norms of behaviour are rooted in concepts of honour and shame.
	This is an issue of growing concern. The joint FCO/Home Office forced marriage unit receives reports of approximately 250 cases of forced marriage each year, mainly with an overseas dimension, and Southall Black Sisters deal with approximately 150 cases each year relating to forced marriage. The noble Lord mentioned that the Government have undertaken a nationwide consultation with agencies about creating a special offence for forcing someone into marriage. I join him in asking whether the Minister can confirm that Her Majesty's Government are, or are thinking of, introducing such legislation to that effect. I hope the answer will be in the affirmative.
	Much has been achieved since a Home Office working group was established in 1999 to look at forced marriages in the United Kingdom. Guidelines applicable to forced marriage and other forms of honour-based violence have been developed and produced for the police, social services, education and the Law Society. I understand that guidelines are also to be developed for health professionals next year. Disseminating such guidelines and ensuring their implementation, as well as ensuring the availability of training for professionals in all sectors, will indeed be an important cornerstone of improvement. However, this cannot happen in isolation from work with the communities themselves. Communities must be part of the solution and not just the problem. A holistic and well-resourced response must be developed and put in place if these issues are to be tackled effectively. Will Her Majesty's Government provide adequate funding for the education and training of all concerned?
	I use the term "sensitivity" because this kind of violence is derived from deeply held values, long-established cultural practices and, ultimately, belief systems in which we find the genesis of much which we hold to be good but also, sadly, much which we in this country cannot condone. These issues involve acts of violence with all their associated traumas, anguish and death. Too often hidden until it is too late, a victim has been abused and/or killed, and a family with its surrounding community left with the aftermath. There are parallels with domestic violence and those working in this field—including women's groups and the Metropolitan Police Service—agree that honour-based violence should be placed within the wider legislative and policy framework of domestic violence. I remind your Lordships that in the United Kingdom two women a week still die at the hands of their partners or ex-partners.
	I had the privilege of speaking earlier this year at a conference organised by the Metropolitan Police—whom I admire for their vision and commitment in addressing this issue.
	When I began to study the problem, I had to try to understand a belief system that convinces its followers that the only honourable way to restore a defiled state of honour is to kill, and also to ask whether our society has any alternative to offer. I suggest that there are concepts of honour, and breaches of that honour, as defined in certain cultures that can lead to hope and not to despair; that there is honour in having the courage to let go of historic norms, values and practices which have been held within the category of the sacred. Can we help people here to realise that honour is not lost by an insult or the exercise of freedoms which our country enshrines, such as the freedom to choose religion or to marry someone from a different faith, and that honour is not regained by avenging that insult or other kind of perceived shame by violence and death, but that instead honour can be manifest in forbearance and dignity and pride can be demonstrated in forgiveness?
	In addressing these questions I began to discern the fundamental importance of a profound difference between aspects of beliefs, values and practices of what we may call the contemporary "western" value system and those cultures which sanction or require honour killings. The former is theologically and culturally grounded in concepts of "right", "wrong", repentance, forgiveness, reconciliation, and, in theological terms, redemption and salvation; or, in secular terms, ideally in rehabilitation, restoration of relationships and reintegration into society. By contrast, some other cultures are premised on concepts of honour and shame—particularly with regard to sexual relationships and perceptions of honour or defilement of women. Once honour has been defiled, it is deemed in those cultures to be irredeemable. Moreover, it casts a stigma over the whole family. The only way to try to restore the honour is to punish and destroy the source of shame—hence the violence so often associated with honour killings and other forms of violence. Similar responses may be associated with the shame caused by conversion to another faith or the perception of blasphemy causing offence to adherents of a particular religion.
	Mussurut Zia, of the Lancashire Constabulary Pennine Division's hate crime and diversity unit, in an excellent paper entitled "Izzat Honour", explains:
	"It would be na-ve to assume that honour based violence only occurs in one particular faith group. This type of violence can be found in the Hindu, Sikh, Christian and Islamic communities across the world, but it must be highlighted that this is a cultural not a religious practice. However it seems to be most prevalent in Muslim communities across the world, therefore a more detailed look at the Islamic stance on honour based violence is required".
	This can also be linked to traditional Islamic Sharia law, where there is no equality between men and women, between Muslims and non-Muslims. This makes women especially vulnerable in cases involving sexual issues, where they are disadvantaged in a Sharia court, or where the family takes the law into its own hands. Such responses may be reflected in, as Mussurut Zia suggests,
	"domestic violence, forced marriage, suspicious suicides (the victim may have been under immense pressure to commit suicide, or felt they had no other alternative), and traffic accidents and missing persons".
	Cultures that are based on concepts of shame and honour tend to have norms and practices conducive to violence, especially domestic violence. They are rooted in traditional beliefs which do not see people primarily as individuals whose value lies in their individual characteristics and achievements. Instead, their value and status are derived from conformity to predetermined roles which, in the case of women, have traditionally been rooted in domestic responsibilities, deference to men and sexual obedience. When people brought up in societies imbued with such traditional values emigrate to countries with very different values and practices, they may suffer acute crises of identity and threats to family relationships. The Metropolitan Police Service work with communities through the Forced Marriage Project over the past four years has shown that even young women who have been allowed access to higher and further education in this country and the opportunity for careers of significant reward of all kinds are still confined by concepts of honour and shame.
	Such family or community crises derived from a clash of cultures are likely to increase as children in those families grow up. Second-generation immigrants may experience some tensions as they seek to adjust to their host culture, and to enjoy their own peer-group relationships. Their parents and grandparents may react by trying to assert traditional mores more robustly. They may thus resort to controlling, or trying to control, every aspect of their young people's social lives, particularly their daughters. They may also resort to physical chastisement, and to the practice of arranged or forced marriages. Such repressive measures may then generate a range of responses from the younger family members, such as secret double lives, hostility and rebellion, depression and even suicide.
	In such situations, honour-related violence and killings can be seen not only as justified, but as a required response to behaviour seen as shameful by a family, shaming them and, through them, the whole community. It is often perpetrated nowadays by younger family members born in the United Kingdom, not just by parents who were the incoming immigrants.
	My focus in this debate is the roots of the problem so often associated with honour-related violence and killings. I have tried to indicate the deep cultural causes that are grounded essentially in spiritual concepts of honour and shame which make change extremely difficult. Many of those who adhere to these beliefs are themselves, as I have already emphasised, feeling vulnerable, lonely and marginalised in our own country, which is in many ways a world away from their traditional way of life. Therefore, to challenge practices that for them come within the domain of the sacred may well seem a challenge too far.
	Of course, we must uphold all our country's laws with regard to domestic violence and murder, and I strongly support any measures that will clarify the criminal aspects of such practices and enable the full strength of the law to be applied to behaviour that must be seen as totally unacceptable in our society. I fully support the police in all the initiatives they are taking. However, we also need to consider as a matter of urgency ways of deterring such behaviour and preventing a predicted escalation.
	Some significant remedies have already been implemented. Women's helplines and refuges have probably saved many lives, but there is a severe lack of refuge provision. There are only eight beds nationwide for female victims of attempted forced marriage, and no services for male victims. Demand far outweighs supply. Therefore, will Her Majesty's Government please consider urgently providing more resources to increase the number of places of refuge for those at risk of this kind of violence?
	Your Lordships must also recognise that such domestic violence is often a result of deep anguish experienced by the perpetrators. The vehemence of much of the violent behaviour is indicative of pent-up anger, frustration and misery. In itself, it may be a cry for help. There is therefore a need to develop ways of engaging the men and women of these families and communities in friendship with fellow citizens who can help them adjust to life in this country, to find alternative ways of developing self-esteem and of adjusting to the differing behaviour of their family members, particularly their younger generation. They are unlikely to find such help if they remain entirely confined within their own communities for friendships and social relationships.
	I give one example to highlight this kind of dilemma, described to me by a Muslim friend who organised a women's group counselling session for Muslim women. A young mother who came was distraught because her daughter had started going out with a non-Muslim. She said that because she loved her daughter, she could accept the situation, although of course it grieved her. But she said she was terrified that her next-door neighbour, from Afghanistan, would come with an axe to kill her daughter for the shame she had brought to the community—and also her, because she had allowed this shame to develop without taking appropriate punitive action herself.
	In recognising the profound need to understand and to try to address the cultural and spiritual needs of those who are suffering in this syndrome of honour-related violence, we are confronted by many challenges. For example, our own society has become so secularised that we often do not even recognise the need for spiritual help. However, as much of the cause of honour-related violence lies in a spiritually legitimated response to behaviour which is itself associated with psychological and social problems, we cannot ignore the spiritual dimension of help and healing.
	Understanding the spiritual dimension of their pain might open up possibilities for adjustment of values, without which there will be no change in practice. If we are willing to come alongside those who perpetrate the violence and those who are victims, we may be able to help them to know that honour can be defined and maintained in a different cultural context in different ways; and that honour lost does not have to be punished by violence, but can be restored to those who had been defiled, giving hope where all hope had seemed to be eternally lost
	Here we are dealing with the realm of the sacred. Therefore, we must maintain the utmost sensitivity to ensure that our endeavours to help are not seen as manipulative or profane. But ultimately, it is only by encompassing the spiritual dimension of "honour" that we can effectively address the practices of honour-related violence.

Lord Parekh: My Lords, I thank the noble Lord, Lord Russell-Johnston, for this extremely important debate on what is on all accounts an unacceptable and abominable practice. When we talk about honour killing it might be useful to spend a minute or two trying to understand what it entails. We would all agree that honour killing is killing that is motivated by, or legitimised in terms of, a sense of honour. Honour could be one's own honour, the honour of the family, the honour of the community or honour of one's race or nation. All killings that are motivated by some sense of honour are forms of honour killing.
	They occur in all societies wherever there are strong taboos associated with certain forms of social relationship. For example, only until a few decades ago in the southern states of the United States honour killing was a common practice. A white man would kill his wife or daughter if he thought that she was having an affair with a black man and the law took an extremely lenient view of that. In Portuguese and Spanish colonies this has, again, been a fairly common practice sanctioned or mitigated by law. Such killings continue to be practised in parts of Latin America where the legacy of the Portuguese or Spanish colonial laws persist.
	Perhaps I may stretch the argument just a little further. One could say, for example, that in our own country, when a white racist kills a black man for going out with a white partner because he feels that she or he has sullied the honour of his country or his race, I would be hard put as a philosopher to say that that is not a case of honour killing, because it is killing motivated by a desire to preserve the honour of England, his country or his race.
	Having said that, I want to deal not with honour killing in general, because covering that would be an aim we could never realise, but with a specific form of honour killing—the kind about which all noble Lords have so far spoken—honour killing that involves killing someone on grounds such as matrimonial infidelity, a child born out of wedlock, a girl daring to demand a divorce against the customs of her community, or having relations, or even a telephone conversation, with someone of a different race.
	Honour killings of that kind are not only widespread in Muslim countries, although they seem to be far more dominant there than in many others. The Turkish penal code, for example, imposed until recently lighter penalties on honour killings, and it has been only in the past couple of years, under pressure from the European Union, that the position has changed. In Pakistan there have been almost 460 honour killings every year—certainly last year. In our own country, according to the BBC News website, there have been some 12 cases of honour killings per year.
	It is important to remember that killing is the final step in a ghastly story.There may have been attempts at physical harm, stabbing, maiming, beating and locking people up, forcibly marrying them off or shipping them off to Pakistan or wherever. Our condemnation therefore needs to encompass not merely the final act of terminating a life, but all the steps that lead up to it.
	While condemning them, we need to ask ourselves why they take place in the first instance. As my noble friend Lord Giddens pointed out, sociological factors which have to do with a certain way of understanding gender relationships are involved. I would say that there are four of them. First, the view that children and wives are one's property, and that one may therefore dispose of them as one wishes. Secondly, a patriarchal system where women are seen as inferior and their sexuality is used as a means to subordinate them in a particular way. Thirdly and more importantly, as the noble Baroness, Lady Cox, pointed out, there is the intense social pressure. In many communities, there is a notion of izzat or of social prestige. Prestige is given to those who observe acceptable norms. If one violates the norms, one loses one's moral authority in the community. If these norms relate to prohibiting certain kinds of relationship, you lose your moral capital or izzat  by violating them. Killing someone is a way of wiping out the sense of shame or stigma. Fourthly, there is always the fear of social reprisal: a feeling that if somebody within one's family has behaved in a certain way, the whole community might act against one in ways which one might find undesirable.
	I might be allowed to mention an example. When I was deputy chair and, for a while, acting chair of the Commission for Racial Equality—the noble Lord, Lord Dholakia, was a dear and valued colleague in those days—a Muslim gentleman came to see me. He said that his daughter had behaved in a certain way which he found utterly disgraceful. I asked him what he was going to do. He said, "Well, I can't kill her because I will get into trouble, although if I have to do this, I will. I might get my boys to do it". When we talk about the first generation of immigrants engaging in a certain practice, let us remember that in almost all the cases that have come before the British or German courts, young brothers and sisters, born and educated here, have been accomplices in this horrendous activity. I said, "Well, if you're not going to use your bully boys to get rid of this girl, what are you going to do?" He said that he would have to send her off to the country from which they came. I said, "Why do all this? Why don't you allow this girl, who is born here, to fulfil herself in all ways possible?" He turned to me and said, "My dear professor, remember that it is a question not just of my personal self-interest or personal izzat. Two other moral factors are involved: first, if this girl behaves in this way and my family is disgraced, what will happen to her younger sisters?" I said that they might go the same way. He said, "Precisely! I do not want them to go the same way. We would like to be able to find partners within our community and we wouldn't be able to do that. Even if I were to concede your argument, there is a further difficulty. In the ethnic market, generally, one tends to depend upon an ethnic clientele. If the word were to go round that my daughter has behaved in this way, and I carry no moral authority within the community, my customers will disappear straightaway and I will starve".
	I have meditated on this question almost ever since. What should have been my advice to this man, who was not motivated by the ugly considerations of self-interest or using his family to pursue self-interest but by what he thought was the moral factor: concern for his family; concern for the honour of his ancestors; or concern about how to earn his livelihood?
	We have to bear all these matters in mind. That is not to excuse at all what is going on. It must be condemned, but we must try to understand why it is happening, because we will not be able to work out an effective repertoire of measures unless we know the deeper causes—the soil from which this kind of attitude springs.
	I would be inclined to argue even that honour killing is not an ordinary form of killing and therefore evil like other forms of murder, but that it commits two further crimes. It perverts relations between parents and children because, if one girl has been disposed of in this way, the others live in fear. It is not just a case of an ordinary form of domestic violence; it is a case of domestic terrorism, because a tremendous amount of fear is being generated among younger members of the family. As my noble friend Lord Giddens very wisely pointed out, it is also a question of imposing a patriarchal system, imposing sexism and subjugating women. For all those reasons, it is not just a question of ordinary violence; it is a question of imposing a certain patriarchal relationship, and therefore it must be condemned.
	What do we do about it? I want to suggest three or four measures which we might consider more carefully than we seem to have done in the past. First, obviously we all agree that honour killing should be banned, and the ban should be enforced vigorously. Honour cannot be a mitigating factor in this case or in racist or any other murders. This issue was first taken up by Scandinavian countries—particularly Denmark and Norway. There, if a crime of this kind is committed abroad, the perpetrator can be punished within the country of which he is a citizen.
	Secondly—here, we need to be slightly careful—it is not enough to impose a ban or to have a vigorously enforced law. If a man has disposed of his daughter in this way or has shipped her off to Pakistan or wherever, he does not see himself as a criminal; nor does his community see him as a criminal—he is a martyr. He is seen as a man of great honour who is prepared to go to prison to maintain the honour of his family and the norms of his society. How do we deal with that? The situation is like that of a suicide bomber. The highest penalty that the law can impose is to inflict pain—that is, kill a man. But if a man does not fear death or pain, the law has no sanctions to impose on him. That is why I think that cultural sensitivity of some kind becomes important. Locking up such a man is not the answer, although it has to be done.
	We must change attitudes in two ways. First, we must make the person realise that killing for so-called honour is really an act of dishonour. In other words, we must remove the sense of stigma associated with a particular kind of relationship and provide alternative moral sanctions so that the opposite kind of behaviour is seen as a source of honour and pride. This is how attitudes need to be changed and, in changing them, a number of agencies play an important part.
	Religious authorities have an important part to play because, although this practice is generally seen as unIslamic, some of the people who practise it see it as Islamic—especially certain forms of honour killing. That is the case where, for example, Islam does not allow a woman—only a man—to marry outside the religious community. If a girl were to marry someone outside the community, she would be seen as bringing disgrace. Therefore, it is important that theologians should be able to show that there is no sanction for this kind of thing within the Qur'an or the Hadith or whatever.
	Leaders within the Muslim community also have an important role to play, although I sometimes wonder whether they can really be effective in that role. To play an effective role within the community, you must have worked at the grass-roots level and you must be embedded within the community. The more that leaders become brokers between their community and the state, the more they are subjected to contradictory pressure. The closer they are to the state or the government, the further they move away from their community and the more they lack moral authority. It is striking that in this country, not only after 7/7 but even before it, if one were to look for leaders within the Muslim or any other community who were prepared to take unpopular stands—those who were prepared to go round the community, address meetings and say, "Look, this is something we cannot do"—it would be very difficult to point to more than one or two. In that deeper sense, there is a crisis of leadership within the community. But whatever leadership is available to us, we should mobilise it fully and get it to act in an appropriate manner.
	Thirdly, we need protective measures for girls who have been victimised in this way. We need to protect them, build refuges and give them financial support. We also need to fund NGOs to do a lot of active work in this area. More importantly, we need to create conditions in which intelligence from within the community can be available to us. People should be prepared to talk confidentially about what is going on.
	Finally, it is important to start with the schools. It is there that the girls need to have confidence and a supportive environment. It is therefore important that schoolteachers, headmasters and the school authorities in general ought to be able to educate girls and their parents, and to alert the authorities when there is the slightest danger that something might be going wrong.

Lord Dholakia: My Lords, like other noble Lords, I thank my noble friend Lord Russell-Johnston for initiating the debate. I am also grateful to my noble friend for producing statistical evidence about the extent of the problem. This subject needs to be addressed because honour killing is a practice that we must condemn. As my noble friend said, and as cited by the noble Baroness, Lady Rendell, murder is murder; it does not matter how you describe it. The sooner that we remove the word honour and start to talk about murder, the better.
	Our starting point is that a single incident is one too many and no civilised nation should tolerate it. My noble friend is right when he says that the percentage of suicides in the Asian community is twice as high as that of persons from the indigenous community. We need to ask why. Does the contribution from the noble Lord, Lord Giddens, offer us a solution or an explanation?
	I am delighted that the noble Baroness, Lady Rendell, is here to talk about female genital mutilation. Last week, she instigated a debate on the subject and its consequences for victims. Your Lordships' House is always at its best when addressing issues that affect the rights and liberties of the individual. I am also delighted to have heard the contribution of the noble Lord, Lord Parekh, who explained what it is when we talk about honour.
	I want to use the example of a family that I knew for years whom we used regularly to visit. Suddenly, a male member of the family was no longer there. For two years, we paid frequent visits yet there were always excuses for why that person was not at home. At the same time, I was a member of the board of visitors for a prison in Sussex. To my horror, when paying a visit, I saw that he was committed to prison. He explained that he was involved in an incident of robbery, and that is why he was punished. Then I asked the family why nobody had told me that he was in prison. They said, "That is because of our family's honour". I could understand the extent to which many people, particularly in our communities, would regard it as for honour, because no one should be aware of what has happened to an individual within their family's circumstances.
	I know of no religion that condones the practice of honour killing. Honour killing, in Islamic definition, refers particularly to extra-legal punishment by the family against the woman. That is forbidden by Sharia, the basis of Islamic law. The same appears in relation to other major world religions. So-called honour killing is based on ignorance, disregarding the law of the land, so that the religious beliefs of those who commit such crime are unlikely to lead us to understand why honour killings happen. We may have to look at other avenues.
	In almost all cases, honour killing is the practice of a family member killing a female relative when she is considered to have brought dishonour to that family. We are also aware of the practices of forced marriages, which often feature in such events. The noble Lord, Lord Giddens, is right to point out that, to a great extent, women are the predominant victims.
	I deliberately used the words "in almost all cases" because we have evidence of male partners of women being killed when they are held responsible instead or the dishonour brought on the family. Take the case dealt with earlier this week in our courts, of a father who ordered his teenage sons to kill their sister's unsuitable boyfriend. He was gaoled for life and sentenced to a minimum of 20 years; his two sons will serve at least 16 and 14 years respectively. I suspect that the family had, probably, never featured in criminal activity before and that the men are unlikely to do so again when they are released. But Justice Gross was right to condemn what he called a cold-blooded intentional killing. He said:
	"Far from vindicating your family's honour you have permanently dishonoured your family with the stain of murder".
	The sons were convicted because the father disapproved of the victim's relationship with his daughter.
	I am no authority, but I can speak about the ethnic communities from the Indian subcontinent that have, from time to time, featured in such incidents, as was clearly demonstrated in the contribution made by my noble friend Lord Russell-Johnston. I should, however, mention that such practices are not restricted to the Indian community or the subcontinent, as several noble Lords have explained. No country is immune; there are recorded incidents in South America, the Middle East, Europe and Africa, to name a few. The UN Population Fund estimates, as my noble friend Lord Russell-Johnston rightly pointed out, that the total of honour killings may be as high as 5,000, most of them women. But that evidence does not take into account suicides and abductions or violence perpetrated on victims.
	Honour killings are often, but not exclusively, associated with the first generation of migrants who came to the United Kingdom. We must go back to the process of migration to the United Kingdom which started in the late 1940s and 1950s. Most migrants lived in villages or small communities within the subcontinent. For centuries, arranged marriages had been part of the culture that they practiced. Mystery often surrounds arranged marriages, but it should not. We should not condemn the practice because people living in small communities grow up together. In many cases people look within their community to choose partners for their sons and daughters. From time to time such marriages may fail, but overall the practice seems to work well in many countries, and let us not forget that it was prevalent here during the Victorian age.
	But, of course, sometimes the arrangements do not work out. A girl or a boy may choose a partner other than the one the parents had in mind. Again, in a large number of cases that may strain family relationships, but time is a great healer and normality is re-established. However, in some cases the preservation of family honour results in the kind of tragedy we are so familiar with. But there is still hope that as minorities settle down in their adopted homelands, no longer will the second and subsequent generations accept some of the values to which their parents attach so much importance. Marriage, food, dress and music are good examples of the fusion of cultures. Not only in the United Kingdom, but also abroad, the pattern of the caste system is gradually breaking down. Second and subsequent generation youngsters are more confident about building relationships with partners of their choice. Historical evidence from around the world is a living proof that integrated societies are the product of many cultures, some voluntary and some imposed by the law of the land. Our food, art and education have been enriched by those who have contributed towards our society.
	Change is always painful, but there should be no fear of accepting what is good in other cultures and we should resist practices that are unlawful on legal grounds or unacceptable on moral ones. The generations of people born here are living in a fast-changing world, which brings with it a change in attitude and a new assertiveness. Youngsters are better educated and more questioning of authority than ever before. They are also better informed.
	Other factors have an influence. The globalisation of power and the decline of class loyalty are putting great pressure on antique structures and often antiquated ways of thought. Of course for many, in particular the first generations, the challenge is frightening. But let us look at the more confident second and subsequent generations growing up in this country. They are rejecting class and caste conflict, elitism and controversy. They are gaining interdependence, self-reliance, openness, liberty, diversity and pluralism. What we are seeing is the birth of new values and a new culture encompassing all that is good in our own values and all that is good in others. So there is still hope that the vile crimes dressed up as honour killings, although few in number, will gradually decline even more.
	What is expected of all of us? I do not look to the noble Lord, Lord Rooker, or the Government to offer a solution. On their own, the Government cannot wipe out all the ills of a society. We all have a responsibility and a duty to ensure that such practices stop. First, we must not be afraid to discuss these issues in the mainstream of our own communities. Our debate today is a good example of how to go about the task. We must accept as a starting point the fact that honour killing in our community is a reality and that we are against it. Secondly, no one should be in any doubt that we abhor such practices wherever they occur in the world, and the full force of the law will be used against them, as happened in the case I described earlier. Thirdly, we must ensure that help is available for the victims of honour crimes. The impact on the families of those affected is great and they need help to rebuild their lives. Fourthly, communities have a responsibility to ensure that temples, mosques, gurdwaras and other places of worship are able to discuss the issue with a view to ensuring that there is no such thing as an honour killing.
	As my noble friend has described, honour killing is murder under any law around the world. My noble friend Lord Roberts of Llandudno explained that we have seen evidence of ritual killings, such as the murder of a child which still remains unsolved. To this day, we see incidents of so-called honour killings, suicides, self-harm and violence, detailed by many noble Lords. These are unacceptable and we must do everything we can to put a full stop to such practices.

Lord Hodgson of Astley Abbotts: My Lords, may I begin by thanking the noble Lord, Lord Russell-Johnston, for tabling this debate. I add my thanks to all the other thanks he has had. I enjoyed the moving and heartfelt way in which he introduced the subject this afternoon.
	This is a subject about which I have hitherto had only a sketchy knowledge. We have had a wide-ranging discussion and I share the hope expressed by other noble Lords that this will raise public consciousness about what is going on as an important first step towards helping to stamp out these intolerable views and practices.
	I agree with the noble Lord, Lord Parekh, that it is important to remember that while the title of today's debate is honour killings, there is a wide spectrum of crimes that could be labelled "honour crimes". Although murder is the most serious, we should hold in equal repugnance any illegal act committed in the name of such honour.
	To successfully combat honour crimes we must first understand why they are carried out, by whom and why so many remain unreported. The organisation Human Rights Watch defines honour crimes as:
	"acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonour upon the family. A woman can be targeted by her family for a variety of reasons including, refusing to enter into an arranged marriage, being the victim of a sexual assault, seeking a divorce—even from an abusive husband—or committing adultery. The mere perception that a woman has acted in a manner to bring 'dishonour' to the family is sufficient to trigger an attack".
	Although there is much attribution in the media of these practices to certain communities or religions, the noble Lord, Lord Giddens, was right in saying that to do so is to confuse the issue. No religion allows such acts of brutality and religious leaders have often spoken on the issue to condemn such behaviour. For example, Sheikh Atuyyah Saqr, the former head of the al-Azhar University Fatwa Committee has said,
	"Like all other religions, Islam strictly prohibits murder and killing without legal justification . . . The so-called 'honour killing' is based on ignorance and disregard of morals and laws".
	I share the view expressed by the noble Lord, Lord Russell-Johnston, that by allowing stereotyping of the issue to continue we risk isolating those who need our help the most and tying our own hands by failing to act on the grounds of multicultural respect for minority practices. In this regard I echo the words of Sir Ian Blair:
	"Multiculturalism does not mean accepting the unacceptable".
	Instead of religion being the driving force behind these beliefs, it would seem that they have their roots in longstanding patriarchal and tribal traditions where the men of a tribe, family or clan seek control of reproductive power. While many of these tribal practices have now thankfully been abandoned, we should not put our heads in the sand and claim that they are no longer taking place. The vulnerability of women in the UK and around the world will be reduced only when these patriarchal mindsets are challenged and effectively confronted.
	To a casual observer it may seem that there has been a rise in the incidence of honour crimes. According to an estimate by Scotland Yard referred to by several noble Lords this afternoon there were 12 honour killings in the UK in 2003 and the Metropolitan Police are re-examining some 100 cases stretching back over the past 10 years for signs of honour motives. This may simply be because these crimes have become more visible in the last few years through the action of various pressure groups.
	The catalyst for this increased visibility was arguably the high-profile media coverage that was given to the murder of Rukshana Naz in 1998 who was killed by her mother and brother; that case was referred to by several noble Lords. It is interesting to note that at her trial, Rukshana's mother claimed the killing,
	"was written in her [Rukshana's] kizmit"—
	her fate. The fact that someone can justify "kizmit" as a reason for committing murder illustrates something of the educational job that lies ahead of us.
	At present, there is no governmental organisation or law enforcement agency that records statistics on honour crimes. The problem may well have been underestimated for a number of years. It would be useful if the Minister could tell us whether action is to be taken to collate these figures and build an accurate picture of the scale of the problem we face.
	The majority of honour killings are committed by men—usually the father, brother or husband of the victim. However, as the case of Rukshana Naz shows, this is not always the case. Although men are often the perpetrators of the crime, we need to look at the broader societal perspective. Honour killings derive from expectations of female behaviour that are held and perpetuated by men and women alike. The significance of the role of women is often underestimated. Occasionally they participate directly in the killings; more frequently they play a leading role in preparing the ground. For example, the anthropologist Ilsa Glaser has noted:
	"Women acted as instigators and collaborators in these murders, unleashing a torrent of gossip that spurred the accusations".
	So we need to be careful not to blinker ourselves by seeing only the crime of a man killing a woman and dealing with the case solely as such. These crimes are the symptom of a much wider ill and we must tackle this also.
	Yes, the typical victim of an honour killing is a young south Asian or Middle Eastern woman, but it is not always a direct attack. Many such women are driven to suicide by pressure from their families. The noble Lord, Lord Russell-Johnston, suggested that the suicide rate for Asian women aged 16 to 24 was double that of the general population. The figures I have suggest that it might be treble. The Minister, no doubt, will be able to confirm which figure is the most accurate. Further down the scale, we have the crimes of intimidation and assault.
	But young women are not the only victims in this area: two men were sentenced last month to life imprisonment for the murder of Ahmed Bashir. He was stabbed 43 times for having a secret relationship with the sister of one of the murderers. Last Tuesday's Times, which has been referred to by several noble Lords, gave details of the tragic case of Arash Ghorbani-Zarin.
	I support the Government's statutory attempts to tackle these crimes, in particular the Domestic Violence, Crime and Victims Act 2004. But passing laws and introducing measures is not enough on its own; we need to be sure that they are effective. There is concern that action involving "honour" crimes could be pushed further underground. It is already thought to be significantly under-reported, as Ken McDonald, the Director of Public Prosecutions, suggests when saying,
	"This is an area of hidden crime".
	It could be very difficult for women trapped in an abusive relationship to come forward if they believe that it will result in more trouble for their families.
	So, while there have been moves of the sort required—such as the Metropolitan Police initiative to gather more information on these crimes—a lot more still needs to be done. We have relied a great deal to date on volunteer and non-governmental organisations such as the Southall Black Sisters group, which was referred to by the noble Baroness, Lady Cox, to provide relief for these victims at an early and preventive stage.
	Our efforts must surely first and foremost focus on educating those who hold these beliefs that they are misplaced and unacceptable, not only in Britain but anywhere in the world. We must be sensitive not to characterise the issue by reference to race or religion and avoid alienating communities. We must build a relationship of trust between those at risk and organisations that can help them, allowing more people to come forward with their anxieties before it is too late. We must gain a greater understanding of the issues surrounding these crimes and use the information to prevent their recurrence in the future. Above all, as the noble Lord, Lord Dholakia, said, we have a responsibility to send out a clear signal that so-called honour crimes will not be tolerated, nor will their existence be ignored, and so underestimated.
	Perhaps I may end on a personal note. I mentioned this debate to my 15 year-old daughter, who looked at me in the way that teenage daughters do in indicating that their fathers are at least sixpence short of a pound. Did I not know, she said, about the case of Nadia Anjuman Herawi? I am afraid that I did not. For those of your Lordships who are in a similar position, it is an instructive tale and relevant to our debate.
	Nadia Herawi was a young Afghan woman who died suddenly aged 25. Her family and her husband said that she had committed suicide, but her friends believed otherwise. Nadia had been writing poetry and her friends are certain that she had been killed by her family who believed that the publication of poetry about love and beauty, written by a woman, had brought shame on their family. Nadia's book of poetry was entitled Gul-e-dadi (which I am told means "dark red flower"). It is available in translation in this country. One poem reads:
	"I am caged in this corner Full of melancholy and sorrow My wings are closed And I cannot fly I am an Afghan woman and so must wail".
	Nadia Herawi's words are a fitting way to end my contribution to this vital but sombre debate.

Lord Rooker: My Lords, the whole House owes a debt to the noble Lord, Lord Russell-Johnston, for initiating this debate. In responding I want to give some background on what the Government have been doing and then, because the noble Lord was kind enough to indicate to me earlier the general thrust of some of the questions he wanted specifically to raise, I will seek to address those. I have been listening to all of the debate except for about two minutes when the noble Lord, Lord Dholakia, was speaking, when I had to leave the Chamber, and I hope I can cover most, if not all, of the issues that have been raised.
	One thing I want to say that is not in my notes is that most of the conventions, units and government actions that I shall refer to are fairly recent, having been established from about 1999 onwards. Over the past few days, since it was decided that I would answer the debate, and indeed during the debate, I have wished that some of these conventions and special units in the police and the Home Office had been around to help me in the mid-1980s, because the issues have not only just arisen; they have been around for a long time.
	I have personal knowledge and experience of dealing with forced marriages—not arranged; those are two quite separate issues—and kidnappings. I hope that the days have gone when it was possible for a man to walk into the consulate of particular countries in Birmingham and around the UK with just a photograph of a woman and obtain a passport for her. The girl would have destroyed her passport to prevent her being filched and sent abroad for marriage. It was so easy to get that passport replaced. I know this to my certain knowledge. Those days have long since gone.
	I also wanted to pay tribute to the work of the Southall Black Sisters organisation, which was referred to earlier. In the 1980s I had experience and help from them with some of my constituency work. This issue has been around for a long time, although action—collectively, corporately, by the Government and by institutions of the state—is only of recent years. Nevertheless, it is better late than never.
	I have some difficulty in using the word honour. It has been used throughout the debate and what the judge said—and I will refer to it later—is quite right: it is a dishonour. It dishonours the individual, the family and the community. It is a crime of dishonour in that respect, committed by people who frankly are inadequate human beings—they have to be. It is a difficult concept for those who are outside, or who watch or hear about this debate. The very concept of the use of the word honour is a contradiction in terms.
	As is known because of legislation, we are committed to tackling domestic violence. The figures have been given, but I will repeat them: the United Nations estimates that some 5,000 women a year are victims of honour murders and honour killings in the Middle East, south Asia and elsewhere and in countries with immigrants from those regions, such as the European Union. Turkey has already been mentioned. In response to this horrific crime, on 15 October last year the United Kingdom and Turkey jointly presented a resolution to the United Nations General Assembly on working towards the elimination of crimes against women and girls in the name of honour. The resolution focuses on preventing dishonour killings, emphasising that the elimination of crimes against women and girls requires enhanced efforts and commitment from governments and the international community. The resolution declares the obligation of states to exercise due diligence to prevent, investigate and punish the perpetrators of crimes committed against women and girls in the name of dishonour and to provide protection to victims.
	The resolution highlights the responsibility of men to promote gender equality and to change attitudes to eliminate gender stereotypes. In the UK, as I speak, there are 12 known honour killing cases—not per annum—and 117 cases being reinvestigated by the Metropolitan Police, the lead police authority nationwide on this. It is not just a London issue, so the figures do not refer only to London. It is looking at those cases to see whether there is an element of crimes of honour or whether they were accidents, suicides, missing person cases or any of the issues that those working in, and representing, the communities will be aware of.
	States have an obligation to promote and protect human rights, including the Convention on the Elimination of all forms of Discrimination against Women (CEDAW). Turkey is taking a positive attitude on that. In my view—one speaks from this Dispatch Box always on behalf of the Government unless one speaks for oneself—the measure of Turkey wanting to change its ways to become a member of the European Union will have to be subject to a test by any reasonable person in due course, but all the signs are that it wants to tackle the problem and is taking action to do so.
	The issue for the Government is that all forms of domestic violence must be condemned. Domestic violence may be perpetrated by family and extended family members. Such crimes are not committed by individuals, as examples have shown; the family team has dishonoured the family by operating together to perpetrate murder. There is very rarely just a single person involved. The family team is also involved in female genital mutilation and forced marriages.
	Government action on domestic violence is led by an inter-ministerial group on domestic violence in Whitehall, in which I participated for a couple of years when I was at the ODPM. It includes five departments—the Department for Constitutional Affairs, the Department for Education and Skills, the Department of Health, the Office of the Deputy Prime Minister and the Department for Work and Pensions. Wales and Northern Ireland are also represented. It is led by my noble friend Lady Scotland, the Home Office Minister. The group sets the Government's overall strategy on domestic violence. There is a broad range of representation because work must be done in partnership; it is not an issue for one department but goes across the piece.
	We have published a document providing a summary of responses to the consultation paper Safety and Justice, which focused on prevention, protection and justice, and support.  The document sets out a range of actions that we are now taking forward across government. We also published and introduced the Domestic Violence, Crime and Victims Act 2004. It is early days but nevertheless the number of refuges and attitudes towards domestic violence have changed dramatically. It is still the case that approximately two women are killed every week in this country. One-fifth of all violent crime in this country is domestic violence-related. It is high on the agenda.
	We have a domestic violence delivery plan because the action is being proactively pushed from Whitehall; it is not a question of passing the law, putting it on the statute book and expecting things to happen. Activity has to be co-ordinated across government, including black minority ethnic domestic violence issues relating to forced marriages, but not exclusively. The European examples are not born in Europe; they involve families who have come here from outside Europe. Honour-based violence goes beyond killing; there is a broader description. Work is ongoing.
	The crimes are the result of a collective decision of the family and are the final stage of repression, because a lot of actions will have taken place before the actual killing. Those few lines in the poem told of the final stage of repression and what was happening before the death.
	We have to make sure this violence does not glorify crimes of honour. It is a dishonour. We must make that absolutely clear, and not be mealy-mouthed with the language. It demeans the person. Men who conduct these crimes are inadequate: inadequate human beings, inadequate men—they are small people. They are not honouring anybody. They dishonour themselves and their community. Whether they are locked up or not, they cannot secretly live and think they are honourable. They are not.
	As many noble Lords have said, this is an issue linked to women's sexuality and fear of women—fear of women standing up for themselves. I will never forget, as I explained to someone the other day, a lady who came into my surgery and told me of terrible trouble I will not repeat here. She said to me, "I have learnt to speak up for myself." She had passed that threshold where she was prepared to take the trouble on. I can see her now, though it was many years ago, trying to come to grips with some of these problems. We also recognise, as has been said, that though the victims are mostly women, some may be young men—as we know, tragically, from the court case this week.
	There is a trans-national component; it is not limited to geographical borders. The point is that as the world becomes a smaller place, such practices gain ground in places where they never occurred in the past. We have to make it absolutely clear, as religious and community leaders do, that this is not a matter related to religion, ethnicity or culture, but it does probably relate to the degree of patriarchal cultures and family structures in the past. It comes about from ownership: what the family owns, the family can dispose of. That is the attitude and frankly it is not good enough. Up with it we will not put, and neither will our European partners.
	As I said, the violence is primarily against women, though men can be exposed to the violence, and forced into committing such violence because of threats against themselves. We know there is a direct link between forced marriage and crimes committed in the name of honour. I want to make it clear that we are not talking about arranged marriages. Forced marriages are a completely different issue. I make that clear just so that those who listen to or read what we say do not get a confused message.
	We certainly need to focus attention better on getting more reliable statistical data. For obvious reasons, coming across the data is a precarious activity, but we need figures. The figures that are available may be underestimated and miss a variety of violent acts such as suicide and so-called accidental deaths. Deaths by burning—family accidents in the kitchen—were quite a feature in the 1980s. There is considerable statistical evidence from work by the Department of Trade and Industry about accidents in the home, an awful lot of them in the kitchen relating to fire. Those are the sorts of thing we will consider when looking at old deaths, to see if there is any such element.
	In the time available I hope to deal with the questions that the noble Lord asked. I am not ignoring anybody else but, by and large, the issues have been covered. I have made the point that there is a direct link between forced marriage and these horrific killings, and it begs the question whether forced marriage should be an offence. Many different offences can be committed when forcing someone into marriage. These include, but are not limited to, assault, unlawful imprisonment, kidnap and rape. Yet there is no specific criminal offence relating to forced marriage. This is similar to domestic violence, where there is no specific offence but perpetrators can be prosecuted for a range of other offences. The Forced Marriage Unit—a body that would not have existed a decade or more ago—has just finished national consultation on whether a specific offence of forced marriage should be created. A summary of the responses will be published within the next three months. The consultation document sets out a number of potential advantages to introducing a new offence. It could challenge people's views about whether people should be forced into marriage, which could in turn lead to fewer cases of forced marriage. A new offence could be a strong deterrent. People might not force others into marriage for fear of being prosecuted. The introduction of a new offence could empower young people with more tools to negotiate with their parents—that is a powerful point. They could tell their parents that they did not want them to get into trouble, because what they are trying to make the children do is illegal.
	There may be some police officers, teachers and others who do not know that forced marriage is wrong and that they have the power to tackle it. A new offence could simplify and clarify matters for public sector employees and give them the confidence to tackle it. There is no doubt that a new offence could make things easier, but there are reasons why this should not be a criminal offence. I do not know the results of the consultation, which deals with a number of issues. There is a risk that the fear of their families being prosecuted may stop the victim from making the complaint in the first place because of the strong family bonds, even though these crimes of repression are being committed. Many victims who ask for help at the moment ask for confirmation that their families will not get into trouble. That is quite normal, so there is an issue there.
	There is a risk that parents may take children abroad—a constant theme in this debate. I have said how easy it was—in the past, I hope—to get passports if the children have got rid of them because they knew what was coming. It is difficult to collect evidence and many victims are reluctant to testify against the family. It may be difficult therefore to bring about a successful prosecution. That is a problem. That is not a reason not to pass the law, however, because we must send the right signals, but the new offence could be devalued if it was thought that nobody ever got caught.
	The new offence would disproportionately impact on black and minority ethnic communities and might be misinterpreted as an attack on those communities. If we decide to go down this route, all we have to do is be better at explaining. We can overcome that problem.
	The noble Lord asked whether the Home Office had been in discussion with religious leaders. There is no doubt that an awful lot of work has been going on, some of which has been detailed by speakers in the debate. Last year in Luton there was a conference about forced marriage and dishonour crimes. It was funded by the Home Office and attended by many community and religious leaders. Work is ongoing with a range of religious community leaders. Dr Siddiqui of the Muslim Council of Britain has spoken out against forced marriage and honour killings and participated in the conference and other events aimed at raising awareness of the issue—an important reason for this debate.
	The joint Forced Marriage Unit is carrying out consultation about whether to make forcing someone into marriage a criminal offence. We have consulted widely; including with religious and community leaders. There is also outreach with the Foreign and Commonwealth Office and the Home Office website. We are, of course, willing to provide information for those who require it. There has also been attendance at media events during that consultation, so a lot of work has been going on.
	The noble Lord asked whether schools could be more helpful when young people are removed for forced marriages. Some head teachers are tearing their hair out because children disappear out of classes and nobody knows where they have gone. Sometimes, perhaps a year later, they turn up at the school gate or the playground, dumped by the parent or grandparent, back to school into a different classroom where everything has changed. There is no mention of why they have come back. They may have been taken abroad to have been promised to someone—that can happen at an early age—to get the family fixed up with other families for later on. It may be an arranged marriage, or it could be a forced marriage if the person does not want to go through with the arrangement. There is a problem there. However, we have issued guidance for education professionals for dealing with these cases of forced marriage, which has been approved by the Department for Education and Skills. We are working with the Miss Dorothy.com charitable foundation, which is dedicated to the protection of children and the prevention of child abuse, to raise awareness of what young people at risk of being forced into arranged marriage can do to seek help.
	The distribution of the leaflet to schools in Derby was mentioned. Those guidelines from the Forced Marriage Unit can be requested from the unit and the information is available. If the noble Lord has any particular details, I invite him not to give them now in public, but maybe to direct the individuals to give them to the Forced Marriage Unit, either through the relevant department or through me in answering this debate. I will ensure they are acted upon—we are more than willing to do that.
	Regarding training for police, judges, magistrates and the statutory sector, the Police Standards Unit has been working closely with the Association of Chief Police Officers and the National Centre for Policing Excellence to raise the awareness of officers and police staff with regard to the identification of dishonour-related violence. The PSU has been promoting the use of a risk assessment toolkit. It held an international conference on honour-related violence in London in March this year. The 2004 guidance on investigating domestic violence has been produced on behalf of ACPO. It contains guidance on investigating cases that may be committed in the name of honour or forced marriage. ACPO has also provided guidance on honour killings in its murder investigation manual, so it is highlighted there. The Home Office, the Foreign Office and ACPO published Dealing with cases of Forced Marriage: Guidelines for Police in May 2002, and that has recently been updated.
	The Forced Marriage Unit was launched in January between the Foreign and Commonwealth Office and the Home Office, and replaces the FCO's Community Liaison Unit, which dealt with 1,000 forced marriage cases over the last four years, including 200 that involved rescuing young people from overseas and bringing them back home. We are working with the Metropolitan Police on accrediting police training on forced marriage as part of domestic violence training. This issue is inexorably linked—forced marriage is domestic violence as well.
	The FCO funded a successful conference on honour killing held in Karachi on 24–26 November this year. The conference was part of a larger project in Sindi and the southern Punjab providing training and awareness on honour killings for the police, the judiciary, the media and civil society organisations. The project contributes to the wider goals of countering extremist positions in society by promoting the rule of law.
	The use of the death penalty as punishment to deter future honour killings was raised sporadically during the conference. The drafting of the communiqué was a delicate process that at times risked promoting punishment of honour crimes using the death penalty. The majority of the debate pointed towards focusing on changing cultural practices at the local level, curbing feudal powers and providing training for the police and judiciary to investigate. There is of course a domestic violence training package for magistrates in the UK.
	Before I make my final point, I want to add that 30 years ago there was one refuge. Today there are about 400 refuges nationally. There is also the Domestic Violence National Helpline, which is linked to refuges online, meaning that whoever answers the phone can see in an instant where a bed is available that evening anywhere in the country. That was set up with money from both the Government and, I think, the largest donation ever made by Comic Relief, to their credit. It is not government-run; it is run by Women's Aid and Refuge, so it is slightly disconnected, but nevertheless with funding from the Government and Comic Relief. The phone number is widely available. It is easy to remember, but I am not going to do it from memory. It is not just for advice; it will link to bed space. People's great fear is that, although they want to get away, they need to go somewhere else, maybe with their kids. Young girls will be fearful about where they are going to sleep that night, because they do not want to be forced on to the streets. More resources are available for young girls, but I have run out of time, so I will not be able to deal with that.
	In conclusion, on one point relating to a case mentioned by the noble Lord, Lord Russell-Johnston: the father in that case who committed the murder received a life sentence. He may be talking about another case, but the father in the case he referred to did not receive 10 years—it was a life sentence. This was the man who claimed that he feared his daughter was becoming westernised.
	My final point is one that Mr Justice Gross made in passing sentencing this week. He hit on the head, once and for all, the argument that one can mitigate because honour killing is traditional. That is not the case—it is aggravated killing. That is the issue that has to be addressed. The sentencing guidelines are being looked at and the forthcoming guidelines will state that aggravating features such as planning an offence, abuse of trust and abuse of power will be highlighted. Those aggravating features will reflect the seriousness of the crime. There will no longer be any reason for anyone—I repeat, anyone—in the judicial system to say, "There is a mitigating factor here, because it is part of the tradition and, therefore, there is a lesser offence".
	I am grateful. There are issues that I have not touched, but I will look at what has been said by all noble Lords who took part in this debate and ensure that the issues are addressed in a letter.

Lord Grenfell: My Lords, I begin by paying some very well earned tributes. My 17 fellow members of the European Union Select Committee tackled this rather complex question with their customary zeal and impressive expertise. I should say how glad I am that the noble Lord, Lord Kerr, who probably knows more about the early warning mechanism than anyone else in this Parliament or any other Parliament will intervene in the gap. I am grateful to him.
	I am grateful to committee members and to our indispensable Clerk, Simon Burton. At the same time, we owe a great debt to our committee specialist, Sarah Price, who marshalled all the evidence and arguments and wove them into a coherent and readable main report. She did a very good job. Perhaps I may seize the moment also to thank Her Majesty's Government for their response, which appears in the follow-up report about which I will have something to say later.
	The Select Committee's first report on subsidiarity was published on 5 April. Clearly, since its publication, circumstances surrounding the EU constitutional treaty have significantly changed. However, subsidiarity remains a topic of interest in member states and national parliaments, and it has been the theme of a number of productive conferences during the UK presidency.
	So what is subsidiarity and why did we undertake the inquiry on this subject? The principle of subsidiarity, put simply, requires that legislative action be taken at the appropriate level; that is, that the EU should act only if the objectives of the proposed EU action cannot be sufficiently met by member states and can be better achieved by the Union. It is an important principle, because it can both act as a check on the need to take action at Union level and ensure that, where that need is clearly established, the action is taken effectively and adds real value. Monitoring the principle of subsidiarity also helps to create a co-operative relationship between national parliaments and European Union institutions, and between national parliaments themselves, which is an idea to which I am greatly attached.
	The principle of subsidiarity made its first formal appearance in the 1992 Maastricht Treaty, which set out important legal principles concerning the existence and exercise of the Community's powers. It was given further emphasis by the Amsterdam Treaty of 1997, which was accompanied by a protocol on the application of the principles of subsidiarity and proportionality. The more recent treaty, establishing a constitution for Europe, was accompanied by a new protocol on the application of these principles. The protocol provided for a mechanism through which national parliaments could seek to influence EU law-making by monitoring the Union's adherence to the principle of subsidiarity and by drawing attention to breaches where necessary.
	Our committee decided to conduct an inquiry into what this new protocol would mean for this House. Although this treaty now seems highly unlikely to come into force, the committee's report remains relevant as the House already has a role in monitoring subsidiarity under the existing Amsterdam treaty. The main conclusion of our report was that the principle of subsidiarity needs to be applied more vigorously if it is to be as effective as it might be. We took evidence from, among others, Professor Stephen Weatherill and Professor Derrick Wyatt, who are leading experts in this field at Oxford University. They were both of the opinion that,
	"so far subsidiarity has done little to shake existing cultures of lawmaking at EU level".
	Both believe that subsidiarity has so far received only token attention from EU institutions and has certainly not served as a restraint on the part of the Community institutions in their law-making activities. We took some evidence that largely refuted this view, notably from the Government and from United Kingdom MEPs, but the committee was of the opinion that the principle of subsidiarity could, and should, still be adhered to more closely. We expressed the hope that the new protocol, if enacted, would provide a vehicle for highlighting and invigorating subsidiarity compliance across the Union. In their response to our report, the Government expressed the same hope and added that they believed that,
	"the thorough investigation and research that has gone into the report will prove valuable, whether or not the treaty comes into force",
	and that strengthening the national parliaments' role in the making of EU legislation should continue to be pursued. We can only say "Amen" to that.
	We also took a substantial amount of evidence on what the new protocol could be expected to achieve. We found that expectations varied widely. There were those who saw it as a workable mechanism for the monitoring of subsidiarity and those who believed that it would be no more than a catalyst for better communication between EU institutions and national parliaments. We concluded that, with or without the protocol in force, subsidiarity monitoring can still, and should, be a catalyst for such a desirable opening-up.
	Commissioner Margot Wallström, in her capacity as Commissioner for Institutional Relations and Communications, told the committee of her desire,
	"to create a culture of co-operation, between the EU institutions and also vis-à-vis the national parliaments—a culture where the European institutions work together".
	The committee would greatly welcome such a change in culture and expressed the hope that the protocol would help to turn that intention into reality. We also looked closely into the question of how national parliaments might collaborate and co-ordinate their subsidiarity monitoring. Almost all our witnesses agreed that, if and when national parliaments intended to submit reasoned opinions to the EU institutions, under the provisions of the new protocol, it would be useful to communicate with each other before doing so.
	We agreed that an exchange of information between national parliaments would be highly desirable to ensure the effective operation of the protocol, and we felt that, although the Commission might listen to solitary objections to placate the member state involved, co-ordinated objections could reasonably be expected to carry more weight. We also expressed the hope that the new protocol would encourage co-operation between national parliaments for wider informative and constructive purposes. In the absence of the new protocol, that remains our hope. With this aim in mind, we continue to support the development of the so-called IPEX project, which will, when ready for use, create an Internet site devoted to the Union's parliaments for their exchanges of information and opinions.
	The committee undertook detailed work on the legal aspects of the protocol. Article 1.11 of the constitutional treaty provides that national parliaments shall ensure compliance with that principle in accordance with the procedure set out in the protocol. The use of the word "shall" in the article led to a wide debate on whether the monitoring of subsidiarity compliance would be voluntary for national parliaments or a treaty obligation. Most of our witnesses took the view that the article implied that national parliaments had a political obligation to monitor the principle but not a legal responsibility. We concluded that the treaty was unclear on this point and that, in practice, it would be up to each parliament to decide the extent to which it would become involved in scrutinising subsidiarity compliance.
	Similarly, it would be up to each parliament to decide how to include regional parliaments and assemblies in the monitoring process. Article 6 of the protocol requires that:
	"It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers".
	Our committee recommended that regional parliaments and regional authorities should be made aware of forthcoming legislation at the time of the presentation of the Commission's annual work programme, and we urged the Government to set the necessary mechanisms in place.
	Still concentrating on the legal concerns arising from the protocol, the committee considered Article 8 in detail—the article that would provide for actions to be brought before the European Court of Justice challenging European legislative acts on the grounds of infringement of the principle of subsidiarity. The committee's consideration of this article brought to light a number of searching questions, which we put to the Government for clarification.
	On the assumption that the Government had answers to these questions before they signed the constitutional treaty, we found their response to this section of our report rather disappointing. The Government offered a general comment on Article 8 which admitted that the article was imprecise and would require further elaboration in further discussions among the member states and EU institutions. Although, understandably, they say in their response that these discussions will now no longer take place following the treaty's rejection by France and the Netherlands, it would help if the Government could now give more precise answers to these legal questions based on the thinking that they must have done before they signed the treaty. Both the Government and Parliament need to be clear on these points in anticipation of any revival in the future of the treaty's proposal to set in place an early warning system endowed with sanctions.
	The final chapter of our report looked at the reaction of other national parliaments to the proposed new protocol. We concluded that, whatever their thoughts on the practicability of the early-warning mechanism, parliaments were enthused by the hope that enhanced subsidiarity monitoring would lead to greater involvement of national parliaments in European law-making. The likelihood that clear cases of infringement of the subsidiarity or proportionality principles might be quite rare, given that the Commission is now taking the issue more seriously in its formulation of proposals—at least, that is what it tells us—does not invalidate the desire of national parliaments to show how vigilant they could and should be.
	With completion of the treaty ratification process no longer in prospect, the committee was concerned to ensure that the enthusiasm for, and political momentum behind, subsidiarity monitoring should not weaken. We therefore published a short follow-up report in November, which includes the Government's response to our main report and an update for the House on recent developments in the area of subsidiarity and, in particular, the decision of COSAC to conduct a subsidiarity and proportionality check in the coming year.
	So where do we go from here? Subsidiarity was a major agenda item at the 9 to 11 October COSAC meeting at Westminster, which I co-chaired with my colleague, Jimmy Hood, MP, the chair of the House of Commons scrutiny committee. At this meeting, COSAC—which I think your Lordships know is the main forum for co-operation between the European Union affairs committees of Europe's parliaments, including the European Parliament—decided that it would not be appropriate, at the present time, to conduct a second pilot project based on the subsidiarity early-warning mechanism as set out in Protocol 2 to the Constitutional Treaty. We had earlier, before the two negative referendums, conducted a pilot project focussing on the Commission's Third Railway Package, which had raised some interesting and significant subsidiarity issues.
	COSAC took this decision because it was sensitive to the view that the body should not, at this stage, make assumptions about whether the treaty would be ratified. COSAC also appreciated the concerns of the Commission, which said that it would find it difficult to respond to anything described as a "pilot project" for the mechanism contained in the treaty. In this spirit, COSAC concluded that it would instead conduct a "subsidiarity and proportionality check", which would serve to focus discussion on how scrutiny of subsidiarity by national parliaments might be improved, and would allow those national parliaments who would wish to do so to co-ordinate their scrutiny of subsidiarity among themselves, to heighten its impact.
	A few voices critical of this proposal have been heard in a minority of the parliamentary chambers around Europe, and notably from a handful of members of the European Parliament. For most of them, the concern has been that COSAC might be seeking to "cherry pick" from the treaty, or might be trying to introduce the treaty's provision for subsidiarity monitoring into practice through the back door.
	Your Lordship's committee in no way shared this concern, and COSAC's conclusions, sent to the EU's institutions, stressed that national parliaments already have a legitimate role to play in scrutinising subsidiarity and proportionality compliance under the Amsterdam Treaty and the protocol on the role of national parliaments annexed to it. By conducting a subsidiarity and proportionality check, national parliaments would not in any way be cherry picking from the treaty, or assuming that the ratification process would be completed. No treaty change is required, either for national parliaments to present their views to the Commission, or for the Commission to respond to those views if it so wished. In addition to this, participation of national parliaments in the process, as I said, would be entirely voluntary. Unlike the provisions in the treaty, there would be no "yellow card" sanctions available to the parliaments.
	COSAC agreed that it would be best if participating national parliaments would inform the COSAC presidency of the proposals they would like to see made the subject of the check not more than two weeks after they had examined the Commission's annual work programme for 2006. With that work programme now published, we have invited those chambers wishing to participate to send in their proposals to the COSAC presidency by mid-January of next year. The next step would then be that the presidential troika—that is to say, the last country to hold the COSAC presidency, the current presidency and the successor—will then collate responses and designate the most frequently named proposals to be subject to the check. This list of proposals will then be distributed to the national parliaments, and to the European Parliament.
	Participating national parliaments will then complete their scrutiny of the proposals and send any comments they have on subsidiarity or proportionality directly to the Commission, the European Parliament and the Council within six weeks, so that these institutions are at least made aware of our specific concerns. Whether they do anything about it is a matter purely for them, but at least they should listen.
	Your Lordships' House will therefore be taking part in this check. The Select Committee and its subcommittees have been closely examining the Commission's list of priority initiatives set out in its annual work programme to identify proposals that ought, in our view—if there are any—to be subject to the check.
	In the mean time, I have written to the European and External Relations Committee of the Scottish Parliament and to the equivalent committee in the Welsh Assembly inviting them to alert our Select Committee in Westminster to any proposals, at whatever stage in the policy-making and legislative cycle they occur, where they felt that there were subsidiarity or proportionality issues of which we should be aware. This would then inform the proceedings at Westminster. We have told them that we will keep them updated on the process and outcome of the check in due course. Obviously this arrangement, if agreed, will eventually include, as we hope, the Northern Ireland Assembly. The responses from our Scottish and Welsh colleagues have been very positive.
	Subsidiarity was the subject of a United Kingdom/Dutch intergovernmental and interparliamentary conference held in the Hague on 17 November this year, in which I participated as co-chair. As at COSAC, the conference reached a broad consensus that the Parliaments of member states should play a stronger role in ensuring the implementation of the principle of subsidiarity in order to achieve the right balance between regional, national and EU levels and to help connect European citizens to European decision-making. And, as at COSAC, the conference saw the earliest possible access for Parliaments to information on forthcoming legislative proposals as crucial to effective monitoring. A presidency note on the conference is due and will be placed in the Library of the House. Subsidiarity will continue to be an area of great interest in Europe during the Austrian presidency and a further conference on the principle has been organised for the 17 and 18 April in that country.
	In conclusion, I am fully persuaded that improved methods of co-operation between Europe's parliamentary committees can, among other benefits, bring about a rise in the quality of scrutiny as we learn from each other, while respecting each other's parliamentary traditions and practices. And that, as the fruits of an experiment on subsidiarity monitoring, will be no mean achievement. That is why we commend to your Lordships these reports on subsidiarity and the monitoring of its application. Bringing national parliaments closer to the European legislative process is one important step in bringing the Union closer to the people. I beg to move.
	Moved, That this House takes note of the 14th Report of the European Union Committee on the Subsidiarity Early Warning Mechanism (14th Report, Session 2004–05, HL Paper 101).—(Lord Grenfell.)

Lord Haskel: My Lords, there are two reasons why I am taking up your Lordships' time this afternoon. First, because I think that the relationship between subsidiarity and the single market is very important; and we can do something about it. Secondly, I am a Europhile and we Europhiles do not make enough of subsidiarity.
	Your Lordships' committee published its report on 14 April, and there is quite a lot of discussion about what subsidiarity is, what it is not and whether it has, or has not been effective. The noble Lord, Lord Grenfell, explained it further this afternoon. But, frankly, I found it all rather inward looking and it all tends to deal with process. It sounds as though we are dealing with a bureaucratic steamroller. It certainly does not sound as though we like subsidiarity, which I think we do.
	Noble Lords may say that that is not the job of our committees—perhaps. But the French and Dutch referendums which rejected the constitutional treaty warn us that we cannot ignore public opinion in our work. If we do, the public will remove the foundation upon which our work is based. I think that the June European Council recognised that with its call for a period of reflection. I suggest that our attitude towards subsidiarity is an important part of this reflection.
	We should start this reflection by being more concerned about voters. Voters care as much about tone and impression as they do about policy and process. For instance, the EU treaty defines subsidiarity as the Union acting only if objectives cannot be achieved by the member states alone. But UNICE, the voice of business in Europe, while accepting this, goes on to say in its definition,
	"EU action should not disrupt the delicate balance found at national level, which takes into account national traditions and cultures".
	It goes on to call for a principled-based approach rather than a rules-based approach, which would allow a degree of flexibility for organisations to develop whichever model suits them best.
	It is wise to look outwards in that way, but that means that there is more risk—risk of upsetting the delicate balance between subsidiarity, state aid and regulation. In theory, in a single market there should be no need for subsidiarity, but if a clear, open market does not exist, rules are needed. Different member nations apply rules differently depending on the structure of the industry in their country. That maintains the all-important relationship between national governments and their citizens to which the noble Lord, Lord Grenfell, referred.
	However, as I said, there are risks. Recently, Sub-Committee B, of which I am a member, considered gas supplies in the European Union. We again called for liberalisation of the markets in each member state, but each member state also has its own national tradition and culture in gas supply. Here in Britain, we have a liberalised market where cheap gas prices have been achieved due to some companies buying on the margin when supplies were plentiful and cheap. Other countries have less liberalised markets—some with a single supplier, who bought long-term at higher prices. Now that marginal prices are high, we are suffering from higher prices and, possibly, a shortage. Whether that is a result of subsidiarity, poor regulation, poor enforcement of EU rules or plain gas price speculation gone wrong, I do not know. The fact is that the only way to tidy that up may be closer integration. But the public do not seem to be in favour of that.
	Subsidiarity can work, too, by opening up the Union, as the noble Lord, Lord Grenfell, said. Recently, our committee considered the third railway package. Among other things, that package considered the certification of train drivers for cross-border traffic. But here in Britain, 95 per cent of our drivers do not cross borders into other member states, so the committee raised that as a matter of subsidiarity. We got a temporary derogation but, most importantly, the Select Committee drew the attention of other national Parliaments to the matter and they, too, are dealing with it in their own way. That is the constructive communication referred to by the noble Lord, Lord Grenfell. At stake are issues affecting the functioning of the single market and the interests of business here and in other member states.
	There are two alternatives. There will be either partial integration, in which groups of EU nation states get closer together in different groupings, or a freer meaning of subsidiarity—a subsidiarity that strengthens the role of national Parliaments and encourages a kind of localism that presents Europe as a more caring institution that enables member states to develop according to their national traditions and cultures. I believe in the latter. I believe in subsidiarity. That is why I agree with the paper that we should pay more attention to yellow cards and make subsidiarity an essential part of our scrutiny. I believe that we can do that.
	As my small example showed, we already have a well developed scrutiny system that subsidiarity monitoring can plug into. I think that the House would expect our EU committees and sub-committees to monitor subsidiarity, rather than to set up a separate mechanism. If necessary, we can involve the whole House on a particular issue through debates or Questions. The House will welcome some can-do spirit from the committee of the noble Lord, Lord Grenfell, regarding subsidiarity monitoring and will welcome the tests about which he has just told us.
	I have one last point. I read the House of Lords briefing on scrutinising European legislation and the chairman's handbook for Members. The only mention that I could find of subsidiarity was a reference to it in the context of explanatory memoranda prepared by government departments. I suggest that after the debate, that omission is rectified.

Lord Bowness: My Lords, I thank the noble Lord, Lord Grenfell, not only for introducing these two reports but, as a member of the Select Committee, also for his guidance from the chair of the committee in preparing them. The noble Lord, Lord Grenfell, has given the House a clear explanation of the committee's report and its proposals. I would not seek to better that explanation, or to repeat it.
	The role of national parliaments was to have been enhanced under the provisions of the constitutional treaty. Happily, there now seems to be an acceptance of the desirability of subsidiarity and the greater involvement of national parliaments in European affairs. While I regret the loss of the formal and legal process set out in the constitutional treaty, there is no reason that national parliaments should not try to exercise the same role as envisaged in the treaty, even if they must rely on influence rather than a strict treaty provision.
	I hope that national parliaments, across the Union, will participate in the COSAC scheme to carry out the check on subsidiarity and proportionality. I certainly hope that opponents of the treaty will not condemn the exercise as an attempt to introduce it through the back door—and, moreover, that treaty supporters will not see it as an attempt to weaken it by cherry-picking a particular provision.
	The treaty only gave national parliaments the early warning mechanism, or the "yellow card", in respect of alleged breaches of subsidiarity—although the protocol itself referred to the application of subsidiarity and proportionality. I understand that the COSAC scheme refers to both. That is welcome as I believe that proportionality might, in many instances, prove to be a greater problem in connection with proposals than subsidiarity. Indeed, I have been advised that in a recent analysis of Commission proposals, only 11 out of 600 may have given rise to subsidiarity problems.
	We may be in a period of reflection following the French and Dutch rejection of the constitutional treaty but, presumably, that does not mean that we spend our time gazing into the mirror. I suggest that these are not the only elements within the treaty which will, in the fullness of time, need to be addressed. I accept that the treaty itself has little chance of becoming law in the foreseeable future, but we cannot do nothing for the foreseeable future. Changes to the operation of the European Union will have to be made. As national parliamentarians, the area that we are discussing this evening directly affects us and is one on which we can proceed. Yet we cannot reject all such proposals merely because they first saw the light in a treaty that was subsequently not implemented. We must be prepared to use existing treaties to accomplish aims, where a particular proposal is in the interests of the efficient working of the Union and the improvement of the democratic process.
	One proposal lost within the treaty was related to the protocol on subsidiarity. It aimed to ensure that decisions were taken at the appropriate level, closest to the people. The protocol referred particularly to the Committee of the Regions. Your Lordships will know that that is the European organisation for local and regional authorities; I had the pleasure of being a member of it for some time. It is consulted on a number of proposals. The draft treaty proposed that the Committee of the Regions would have the right to bring actions in the European Court of Justice against European legislative acts where it considered that they infringed subsidiarity and involved matters where it had to be consulted. From my experience of work on the Committee of the Regions, I do not believe that local and regional authorities are anything other than jealous guardians of subsidiarity and their independence. That is another factor which may cause us to regret that we have not been able to go forward.
	Perhaps we should be encouraged by the outcome of the conference held on 17 November in The Hague. The noble Lord, Lord Grenfell, referred to the conclusions. I shall expand on those briefly. The papers state that:
	"Member State Parliaments are encouraged . . . to develop their scrutiny role to ensure democratic debate at the EU's multi-annual and annual programmes, consultation documents, road maps . . . to provide the European institutions with an early indication of their perspectives on where Member States should take action; and . . . to participate in the efforts of COSAC".
	Perhaps more important:
	"The Commission, with the Member States Council and European Parliament, is encouraged . . . to ensure that Member State Parliaments are consulted at an early stage and their views taken into account before bringing forward new legislative proposals or proposals to reduce EU involvement in some areas"
	All these are, I believe, a formula for partnership and a recognition by governments and by the European institutions of the legitimate role of national parliaments. It is something in which we as national parliaments can play a positive rather than a carping role in European matters, and ensure that legislation coming from Europe is properly scrutinised.

Lord Wallace of Saltaire: My Lords, it is an unusual experience to be in debate quite so late on a Thursday evening. I had hoped to be in Saltaire by tonight in order to drop in at the Yorkshire Liberal Democrats' Christmas party in Leeds on the way. Some of these things have to be abandoned. However, this is an important issue for national parliaments. I welcome the report, which is very much of the quality we would expect from a House of Lords committee. It is extremely important that, even without the treaty, we move to strengthen the role of national parliaments.
	As someone who has worked on the history of European integration, I recall that when Jean Monnet designed the original European Coal and Steel Community, he did not regard the involvement of a consultative parliamentary assembly, let alone that of national parliaments, as important. He had had enough of the French National Assembly trying to interfere with national planning and hoped that he could get away from that sort of politics, replacing it with rational administration. Happily we have moved on since then, but the weakness of national scrutiny within most parliaments has been marked. The extent to which national parliaments were engaged indirectly through representation in a nominated European parliament left a gap when we moved to the directly elected European Parliament. For several years in many parliaments, including our own House of Commons, there was little prestige in being involved in European scrutiny and certainly very little co-ordination among national parliaments to make sure that careful scrutiny was provided.
	In its early years, COSAC was not very effective. My own early experience of it, as the chair of a House of Lords European Union sub-committee, was that we ate extremely well but that our conversations were not always particularly productive. I hope very much that COSAC is now becoming much more effective. The provision of national parliamentary offices in Brussels is also helpful in that it provides the mechanism for easy co-ordination and more rapid communication between Commission proposals, national scrutiny and learning what other parliaments may be doing.
	We now have the Declaration of the Protocol of the Treaty of Amsterdam reprinted in the second of these two reports, and we have the text of the unratified constitutional treaty. I strongly agree with the report. This is an area where we should move ahead without ratification. While I regret the non-appearance of the noble Lord, Lord Pearson of Rannoch, who would have told us how wicked this would be, one has to recognise that even if the European Union did not exist, in a global economy with increasing trans-border travel, crime and trans-national corporations, the problem of remote governance above the level of the nation state and how we attempt to keep that accountable would continue to exist. Within the European Union we should attempt to provide accountability as far as we can.
	Subsidiarity is a political concept, not a legal one. In any system of multi-level governments, politics revolves around whether or not issues should be handled at one level or another. Look at the United States—the whole history of the United States. When the Scottish Parliament was set up, look at the extent to which the Cardinal Archbishop of Glasgow immediately suggested that some issues such as abortion should be handled immediately by the Scottish Parliament without apparently being aware that the Irish Government had already got a deeply obscure clause into the Amsterdam Treaty to stop abortion law being handled at the European level.
	Subsidiarity and multi-level governance are always going to be highly contested issues. I note the quote from Professor Stephen Weatherill, in paragraph 79 of the report, stating that there had always been a centralising tendency in the Commission and the Brussels institutions. As a past member of your Lordships' own European Union Committee, I had found that some noble Lords had not always wished to ask the question: is this something which the European Union should be doing?
	The noble Lord, Lord Grenfell, may well remember a sub-committee plunging into discussing the Commission's proposals for the harmonisation of blood alcohol levels at the European Union level, even though some members of the full committee—myself included—wished to say that that was absurd and that the issue should have been left to national governments or even below.
	We have to accept that subsidiarity is a two-way street. Those of us who wish to see a more effective European Union think that there are some things that are better done at the European Union level—stronger foreign policy co-operation, stronger co-operation against trans-national crime, closer co-operation in border management. But we need to take Brussels out of detailed regulation on social issues, working time and the like. When I was chair of the sub-committee I conceived a particular disagreement for the social affairs director-general of the Commission who clearly believed that more and more social affairs and regulations should be harmonised and centralised in Brussels because Brussels knew better than national governments. That is part of the Brussels belief against which we have to fight.
	Subsidiarity is not just a test that we should use against Brussels. It would be useful if Her Majesty's Government would think about issues of subsidiarity within the United Kingdom, not only about the Scottish Parliament but perhaps about allowing local government to have a little more autonomy than it is currently granted every now and again.
	How do we move forward? Here again the report is absolutely right. We should start as early as possible—the six-week period is after all extremely short. We need to monitor proposals as they move through the Brussels institutions to make sure that as proposals change they do not become more centralised. We should accept that this is a special procedure for your Lordships' House, alongside the existing sub-committees which do different but extremely valuable work. As paragraph 95 states,
	"the House itself should cast the vote",
	where necessary.
	We should as a Chamber operate autonomously from the House of Commons, although as far as possible in liaison with it. We should have close communication with other parliaments through COSAC and through our commonly-sited offices in Brussels and—for this as well as for other reasons—we should develop closer co-operation with British Members of the European Parliament which is something that both Chambers of the British Parliament have been deeply reluctant to do.
	Lastly we should, as stated in paragraph 25, move rapidly towards introducing this mechanism. It states that,
	"even if the Constitutional Treaty does not enter into force, the provisions relating to national parliaments and to subsidiarity can and should provide a stimulus to greater and more effective scrutiny by all national parliaments in the EU".

Lord Harrison: I, too, thank the noble Lord, Lord Grenfell, for chairing the committee and presenting the report today. It has many good points. I also thank the noble Lord, Lord Wallace, who has joined the party here. I can see that he is enjoying himself much more than he would in Saltaire.
	As to the definition of "subsidiarity", I remind your Lordships that, in the abstract, we read:
	"Subsidiarity can both act as a check on the need to take action at Union level and ensure that, where it is needed, effective action is taken at EU level".
	In other words, it is not just a yellow card and a red card but, on occasions, a green light. Subsidiarity has that positive effect as well.
	The abstract also reminds us that subsidiarity,
	"ensures legislative action is taken at the appropriate level in those areas in which competence is shared".
	I make that point because too often it is misconstrued as taking it to the lowest level, not to the appropriate level. Indeed, Euro-sceptics have leapt on that element in order to be negative about proposals that come from Brussels by that means, as they have in the aftermath of the two "no" answers in the recent referendums on the constitution. But it would be wrong of us to fail to promote the good ideas that were part of the constitutional changes. I understand that the British Government are now proposing more open councils, which is a good thing, and we should resuscitate or bring into being some form of better scrutiny of subsidiarity.
	What is the role of the House of Lords in this? It has a role because of the expertise and experience of its members and its established scrutiny committees on European Union affairs. I agree with the report that such scrutiny should run parallel to, not be mixed in with, the scrutiny of substance that we deal with in the reports we produce from the Select Committee.
	However, the report also highlights some of the problems associated with trying to develop some of its ideas. We are told that we will need to have improved communications between all the institutions. Can we rely on this? I am not sure. We are told that there will be a six-week turnaround period. But I tried to calculate today when we had a six-week period in your Lordships' House to accomplish this. There are perhaps as few as eight Mondays when, after receiving something from the Commission, we would then be capable of having a free flow of six weeks for our process of scrutiny. We need, of course, root and branch reform of the way in which we do our work here. But what have we done just recently? We have reappointed the four-month break in your Lordships' House and in Parliament as a whole—and the most recent four months took place during the period of the United Kingdom presidency.
	Like the noble Lord, Lord Wallace, I, too, have problems with some of our collaborators. We are asked, for instance, whether the Select Committee would pronounce on questions of subsidiarity or whether it would be a decision of the whole House. The whole House is highly desirable, but elements of conflict lie there for the moment. What do we do in relation to the House of Commons? If the House of Commons says "yes" and we say "no" to a proposal, is it a 1-1 score draw? Who has predominance? I suggest that it should be the House of Commons—our job is to advise—but I am not sure that we have said that in the report. Why do we not think of establishing a Joint Committee? That would make life quicker and more effective. We talk about consulting other nations and regions within the United Kingdom—and I hope that we can do it—but that will provide some real logistical problems.
	We also have as collaborators other parliaments of the European Union, but COSAC, as an institution, is flat-footed at the moment. Again, there are enormous logistical problems in consulting with 24 other member states and I do not think we should disguise from ourselves how difficult that will be.
	Other problems include the fact that proportionality has been left out as the dual test that should take place, as the noble Lord, Lord Grenfell, mentioned. This is particularly important for small businesses because sometimes their concerns are not taken into account. We also have problems of understanding that subsidiarity is sometimes a moving target, so when something is going through the parliamentary scrutiny process there can be a change from, say, Article 308 as the legal base in terms of requiring unanimity, to Article 95 with qualified majority voting. The parliament, in this process, may not have caught up with the changes that have been made on the hoof in Brussels as we try to arrive at a decision on these sometimes important issues.
	I want to dwell on other potential collaborators in the process of subsidiarity, which we have spoken so little of in this report. Like the noble Lord, Lord Wallace, I identify with the fact that all of them are on the spot, in Brussels with their ears to the ground, listening to those who are thinking about future legislation which might be brought forward. Pre-eminent of those is the European Parliament. There is one perfunctory, lukewarm reference to collaborating better with MEPs and I am grateful for that; we say not just British MEPs but those of other nationalities too. But we ought to be talking to our British MEPs on a daily basis about problems of subsidiarity as legislation and proposals flow into us. They are the best early-warning mechanism that we could have: they are British, they are on the spot and they can speak to us.
	We neglect the Commission. It is often thought that the British Commissioner is part of a college and has therefore lost his patronymy, but that is not true. It is part of any Commission that it takes an overall view of the Commission's work and should be able to respond to British requests. The Commissioner and his cabinet are often in a prime position to say what is coming along and we in your Lordships' House should be tapping in there. UKREP is another example. I am glad that the noble Lord, Lord Kerr, is going to speak later in this debate because he is a pre-eminent example of those who are looking at very detailed dossiers and are able to give good advice to politicians about questions such as subsidiarity as well as the substance of any proposal.
	There are also the business organisations: UNICE, which has been mentioned by the noble Lord, Lord Haskel, UEAPME, ETU and NGOs—which again often have their ear to the ground. The House of Lords should devote more time to those on the spot in order to deal with the question of subsidiarity.
	In conclusion, I very much regret some of the comments that we make about the European Court of Justice. Such comments are somewhat jaundiced where we say that the Court will have to take a more critical approach to subsidiarity. Where is the evidence that it has not taken a proper approach to subsidiarity? I am not particularly happy with that remark. It returns to the point that was out most in the debate by the noble Lord, Lord Haskel, which is this. What we have done in this country is to join a single European market. That market has to have rules. It is right that part and parcel of that process is to see how they are appropriately applied in each member state, and that is the role of the national parliament. But we must understand that joining a single market at a European level imposes on us obligations, especially in respect of the 24 other countries in that market, if indeed we are to break down the barriers that impede business in Britain and elsewhere from being successful in producing the jobs and prosperity that we all want.

Lord Neill of Bladen: My Lords, I am a member of the Select Committee and of Sub-Committee E, which looks at quite a lot of the incoming legally focused drafts coming from the Commission, sometimes draft directives or framework decisions and at other times the early stages of Green Papers, so I have seen a little of this. I, too, pay tribute to our chairman, the noble Lord, Lord Grenfell, for his work and for the clarity with which he presented the issues today.
	I start from the premise of forgetting about the constitutional treaty. I assume that for the time being it has been placed on ice and a process of reflection is taking place, but I agree entirely with all those who say that that is no reason at all for us to sit back, be complacent and not think about subsidiarity as an important topic.
	I wish to flag up in particular the evidence that we heard from two professors, Professor Stephen Weatherill and Professor Derrick Wyatt. If noble Lords take the time to read their written evidence and oral testimony, they will be impressed not only by the scholarship and the care with which their views are formulated but by the very depressing picture that they give of the standing of subsidiarity as an effective doctrine in European affairs. I think that nearly everybody agrees that subsidiarity was brought in as a brake on the legislative centralism of Brussels and particularly a brake on the Commission. They point out that it has been largely ineffective.
	Professor Weatherill gives three reasons. First, he says, the definition of subsidiarity is badly drafted—I will come back to that in a moment. Secondly, he says, the European institutions—he is thinking particularly of the Commission but of others as well—have not had subsidiarity at the forefront of their mind since Amsterdam or even the earlier stages when it first appeared, as the noble Lord, Lord Grenfell, said. They do not think along those lines. Thirdly, on the basis of knowledge of the jurisprudence of the European Court of Justice, Weatherill, in particular, says that the court has been no supporter of the principle of subsidiarity. That is traced back to an observation by Lord Mackenzie-Stuart, the first British judge on the European Court of Justice. He took the view, echoed by the noble Lord, Lord Wallace of Saltaire, that subsidiarity was a matter of politics not law. That is a very odd statement, given the new protocol, which specially devises a procedure whereby parliaments, through whatever becomes the right process, can challenge subsidiarity in the ECJ. I venture to suggest that it has distinct legal aspects. I shall give an example later where it is pretty obvious that a subsidiarity issue arises and, to my mind, that the principle has been transgressed, just as in some cases that Sub-Committee E has looked at.
	The definition point is interesting; I have never seen it argued so well. I remind noble Lords of the definition, which I quote from the 14th report at page 61. It comes out of the proposed constitutional treaty but is almost exactly the same as the Amsterdam text. It reads as follows:
	"Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level".
	The Amsterdam protocol assumes that there are two separate limbs to that definition. What Professor Wyatt demonstrates in his written evidence is that those two aspects merge into one. Of the first bit—
	"insofar as the objectives of the proposed action cannot be sufficiently achieved"—
	he says that it will always be part of the Commission's objective to achieve pan-European legislation. The first bit is not satisfied. You cannot say of a pan-European proposal that it could be sufficiently achieved by the member states. In other words—study it for yourselves—the argument goes that there is only one test: is this a job that the centre can do perfectly well?
	One of the examples that we have examined in the sub-committee is a current one on European small claims procedure. Most member states have, if they want them, their own procedures for handling very small claims. Here we have a limit of £5,000. A small claim below that limit can be dealt with in a simplified and, it is hoped, much cheaper and quicker manner than the big cases that go through the High Court. Other countries have their own procedures. In Sub-Committee E, we are looking at a proposal for a European small claims procedure that would deal not only with cross-border claims—such as when you go to a hotel in France and you are let down or have a crash in the middle of Paris and some claim arises cross-border—but with small claims in the UK. The sub-committee is likely to reach the conclusion that, internally, it is wholly unnecessary to have a European Union model. We have our own rules, they work perfectly well, and we can amend and adopt them as we want. What is potentially useful as a tool—subject to getting the cost, translations and certain difficulties like that right—is a weapon for attacking the hotel keeper in Bonn or wherever when you have a cross-border claim. It is an example in which the draftsmen who produced it at the centre have, unthinkingly, made it applicable to internal cases as well as cross-border. It reflects an attitude of mind that should not be there; they ought to be more sensitive to the issue.
	The other example is the Green Paper on criminal penalties for all manner of crimes. It is an extraordinarily elaborate paper—it runs to 100 pages—examining every aspect of criminal law. It is certainly intended, if followed up and adopted, to enter right into the system of criminal penalties for domestic crime in all member states. We discussed that earlier in the summer, and I think that the feeling on the sub-committee then was that we would look to the Government to take a pretty strong line on it. We have our own criminal law and can take our own view of what is right for rape or armed robbery and so on. Other countries can take different views about those issues; that is for them. It again reflects an attitude of mind that ought not to be there.
	I entirely agree with the recommendation that the way forward is to follow the experiment outlined by the noble Lord, Lord Grenfell. We must take a much tougher approach to the notion of subsidiarity and treat it as it was first intended to be: a break on excessive zeal from the centre.

Lord Kerr of Kinlochard: My Lords, I am a member of Sub-Committee A but have nothing whatever to do with the excellent report presented by the noble Lord, Lord Grenfell, and I pay tribute to it. I am inadequate as a substitute for the noble Lord, Lord Pearson of Rannoch, and fear that I shall fail in that task.
	The subsidiarity mechanism, like transparency in the Council, is one of the many good things included in the constitutional treaty, but one of the few that can be implemented in the absence of the constitutional treaty. Just as there is nothing in the present treaties that requires the Council to legislate behind closed doors, immune from public scrutiny, so there is nothing in the present treaty that bans improved scrutiny by national parliaments. It would take only a simple majority decision in the Council, amending its rules of procedure, to open the doors to permit the press and television to witness the legislative process. It should do that. It would take even less to bring about the practical benefits of better scrutiny of subsidiarity by national parliaments. It is intriguing that everyone who has spoken in the debate so far believes that that is a desirable aim—that is what we should be trying to do. I do not know why we do not just do it.
	Nothing in the present treaty bans the Commission from sending its draft proposals directly to national parliaments, and they are now available at the flick of a switch the moment they are produced. Nothing in the treaty bans national parliaments from commencing their scrutiny and discussion before governments do so in the Council. Nothing is more damaging to public understanding of and support for the European Union than the obscurity of the EU legislative process and its separation from national political debate.
	The cherry picking argument has been referred to and dismissed—rightly—by the noble Lords, Lord Grenfell and Lord Bowness. I distinguish two kinds of anti-cherry pickers. There are the endearingly idealist and the ruthless Realpolitik schools. The endearingly idealist tend to be people who favour the constitutional treaty and fear that there will be no chance of ever getting such a treaty ratified if the best bits are implemented in advance. That is endearing but wrong. Given the weight of hostility to and ignorance of the Union revealed in the referendum campaigns, it is rather urgent to try to ensure a more informed debate in capitals and a more open debate in Council more closely followed in capitals. If, or rather when, the subsidiary mechanism proves popular, making it permanent and giving it legal force by enshrining it in the treaty will also be popular. So much for the endearing idealists—I do not think that there are any speaking today.
	I do not know whether we will hear a ruthless Realpolitik speaker in a moment. Looking at the noble Lord, Lord Howell, who is legendarily ruthless in his Realpolitik, I would say that the argument that as the treaty was not ratified it would be wrong to bring into effect any part of it—even parts like the subsidiarity mechanism that were uncontroversial and probably rather popular—is a difficult argument to sustain. The motives of some who advance that argument can only be that they do not want the EU to work better. They do not want it to be more in touch with public opinion. They do not want it to be better understood. They want to go on denouncing it as obscure, inefficient and incomprehensible, so they are not interested in transparency or subsidiarity. They want it to stay the same. That is what I would call a ruthless Realpolitik argument, and I hope that the noble Lord, Lord Howell, will not advance any such argument against what seems to be highly desirable cherry picking.
	The most intriguing sentence in the 15th report was a sentence in the Government's reply to the 14th report. The Government say that they are,
	"giving active consideration to whether it would be possible, by agreement in the European Council and Commission, to implement the spirit of the Subsidiarity Protocol".
	In principle, it ought to be possible to do that, given that all 25 member states represented in the Council, the Commission and the European Parliament supported the measure when it was placed in the constitutional treaty. I hope that the noble Baroness, in reply to the debate, may be able to tell us how that consideration in Government has advanced and what steps have been taken during the UK presidency to bring it to fruition.
	Of course, we do not need a decision by the European Council—we could just do it. I favour the COSAC mechanisms, as described the noble Lord, Lord Grenfell, and spelt out in the report, but I also very much agree with the practical points made by the noble Lord, Lord Harrison. It seems to me that to put ourselves in a position to make use of the subsidiarity mechanism informally and to make use of this COSAC co-ordination machinery, we need to look to our own procedures and see if we can improve them.
	It would be good if the scrutiny process started the moment that the proposal emerged from the Commission. For example, the excellent Commission communication on a strategy for the simplification of the regulatory environment came out on 25 October. As I understand it, our scrutiny in the House began when we received the Government's Explanatory Memorandum on 21 November. That scrutiny lasted one week, because we thought that the report was very good—it was not my Committee—and we were happy to wave it through. But suppose it had been a bad communication; suppose it had been a document that did not fully reflect subsidiarity. We have to put ourselves in a position to act quickly, and I hope that, when he responds to the debate, the noble Lord, Lord Grenfell, may be able to reassure us that he continues to work with the Government on ways to ensure timely receipt and effective scrutiny of EU legislation.

Lord Woolmer of Leeds: My Lords, I thank my noble friend. I join those who congratulated the noble Lord, Lord Grenfell, the chairman of the Select Committee, for bringing the matter forward for debate and so elegantly introducing it. Like other noble Lords, I agree that proportionality and subsidiarity are almost indivisible. I refer to Professor Weatherill's excellent written evidence and oral evidence, in particular his reply to question 10 in the 14th report, where he deals with this matter.
	I would like to enter a note of qualification: the yellow card issue is a bit of a red herring. The European Union is a union of member states. Governments represent member states and act on behalf of national states, not national parliaments. We need to think carefully before we are deluded about this, pursuing something that can never realistically work. I think it inconceivable that a third of the national parliaments—bicameral, in most cases—will disagree on a point of constitutional substance, on subsidiarity, with their government. I accept that constitutions can have something in for the inconceivable, and rightly so, because one never knows.
	For me, the question about subsidiarity is whether the relationship between member parliaments and their national governments is robust on subsidiarity. That has two elements. First, in our own House, are we really in a position, in resource terms, expertise and timeliness, to examine rigorously what could lead to a legal challenge in the European Court of Justice on the issue of subsidiarity? The answer may be "Yes" in some sub-committees but not in all. Are we properly structured and resourced to deal with that in a timely manner?
	Secondly, are our views, ideas and thoughts sufficiently robust so that we can have a dialogue with the government of the day about the criteria of subsidiarity and whether there is agreement between this Chamber and the government, not only on significant subsidiarity—we are all against sin—but on what that actually means when you come to examine legislation? In other words, as with anything in life, ensuring that things happen is a matter of relationships between key players. The government and parliament of a member state are the key players who can form, for example, a British view.
	If we simply did not agree with the Government, we would get nowhere. Quite apart from the Realpolitik , I should say to the noble Lord, Lord Kerr, I cannot imagine, except in a hung parliament, that the House of Commons would vote down the government of the day on such a constitutional issue. The House of Lords would have to think carefully about that kind of thing. The starting point for me is relationships with one's own member state government. We are not robust enough about that, and there is not sufficient working agreement on what it means between our own Government and both Houses of Parliament. That is my position.
	The value of this kind of debate is that it reminds the House about the importance of scrutiny. Although subsidiarity, like vires, comes first, scrutiny is about much more than that. It is all the other elements—the conduct of impact assessments, consultation, whether any action is required, whether framework directives are better than detailed directives—that are important issues. It is not a matter for debate today, but the public and certainly the business community and my committee on the single market are concerned about the other scrutiny issues. We have to make more progress with the Government on those issues, as well as on subsidiarity.

Lord Dykes: My Lords, the noble Lord, Lord Woolmer, virtuously kept to the time allowed, while the noble Lord, Lord Kerr, did not. That showed an unusual lack of discipline, which we normally expect from the Foreign Office. I hope the noble Lord will not mind me saying that that was symbolic of the constitutional treaty document, which was over-long, excessively boring and intimidating for those who had the chance to read it thoroughly, and was never properly explained, except in one or two countries, such as France, where excellent documentation was distributed. Maybe, if anything is revived in future, the lessons will be learned and we will have something that is much more user-friendly for the ordinary citizens of the European Union, thanks to the Maastricht Treaty.
	These reports taken together are impressive documents indeed, and I echo previous thanks given to the noble Lord, Lord Grenfell, and his colleagues for a really high-quality report, although being a new Peer I have not read that many. The follow-up was high-quality, too, given the difficulty of the surprise disappointments on the constitutional treaty.
	One of the great but ironic disappointments of the decline of the projects for the new constitution was the concomitant fading of the radical set of new proposals to deal with the Community's decision some years before, both to strive to do less legislation anyway, but to do it better, and to weed out redundant legislative material at the same time; and also to respond to the growing call for a new subsidiarity preoccupation, even from European enthusiasts. These efforts went side-by-side with the much longer efforts of the various members of COSAC in the member states' parliaments to improve their own scrutiny procedures. I congratulate the noble Lord, Lord Grenfell, personally on his exercise on the COSAC UK presidency, which has been extremely successful.
	The unhappy occasions when member governments were deciding new items without their parliaments being properly consulted has already materially declined in more and more national parliaments. That is a good start; and although various scrutiny suggestions made by MPs and peers in the UK were at the outset often the preserve of Euro-sceptics seeking to sabotage or at least delay intrusive EU legislation, the pro-Europeans quickly realised that effective scrutiny was a wholly legitimate activity and would also reassure thinking public opinion. The nationalism in this country has come from other things, not because of these complicated matters.
	The new subsidiarity mechanism was to some extent a brand new concept, much deeper in constitutional and functional terms but, strangely enough, some kind of continuity item from the past stream of efforts described earlier. I feel strongly that the EU Committee needs our profound gratitude for the formulation of some ingenious mechanistic proposals, which are actually more convincing now than they were originally when the constitution looked as though it might be ratified by France and Holland as well as by many others. This has been helped by the subsidiarity mechanism's status as an annex to the treaty as a new protocol. It needs to apply only to those instruments where shared competency arises, as we know. I agree strongly, too, that this new mechanism, if agreed, should be kept separate from the existing scrutiny reserve system, despite the latter often not functioning, frankly, very well.
	It is very compelling to prefer a vote by the whole House on the very special step of raising an important subsidiarity objection, but would that be practical, bearing in mind the pressures on parliamentary time in both Chambers?
	However, we, as euro-enthusiasts, particularly in the Liberal Democrat Party, know well that these developments have been adversely affected by the temporary lapsing of the ratification procedures. Although 15 countries have now ratified the treaty, we are quite sure what is going to happen. I suppose that the UK will be one of the last states to ratify it. The treaty is definitely on hold here. Several governments have formally suspended their processes anyway and we have done likewise.
	However, page 5 of the follow-up report states that the Government are making enquiries with the other members on whether the spirit of the subsidiarity protocol could be implemented. I ask myself mischievously: does it have to be just the spirit? Could it be the substance? Could there be a small protocol treaty? Bearing in mind that that would need an intergovernmental conference, perhaps the answer would be no, but the stronger the form in which it is revived, the better it would be for all concerned.
	I am glad that the Government have agreed with the yellow card system, as far as I understand it anyway. I am not so sure that the six-week period will always work satisfactorily without making our already complicated procedures even more so. The intervals created by the delays in ratification provide the time perhaps to reflect on a more tangible, safer approach. That was acknowledged in the reports.
	The question of a second dose of subsidiarity testing is also rather worrying. If a piece of legislation is substantially changed by further ministerial and other negotiations, will that also come back to the relevant parliaments for further consideration? The Government are right to say that that would be impractical.
	I welcome the Government's soothing comments on what they would do to try to make the six-week timetable feasible, but, as I said earlier, I still have my doubts. There are other problems and headaches involved in trying to get these complex new procedures right, and it is to the credit of the committee of the noble Lord, Lord Grenfell, that a lot of very interesting and relevant suggestions were made in the original report, HL 101, which, because of its quality, will not be subject to the fate of some of the items that are put into the metal casket on the television programme "Room 101".
	I assume that even if the treaty is not fully revived, because circumstances are too problematical, there is a will—indeed, the Government have confirmed it in writing—to formulate some kind of effort. We must wait on events, but the reasonably regular use of the subsidiarity test on important legislative documents launched by the Commission would serve the whole Union well. As the noble Lord, Lord Kerr, said, we can go ahead on these matters anyway.
	I shall refer briefly to Article 8 and the ECJ methodology and involvement. They are complicated issues even for clever lawyers, the noble Lord, Lord Neill, included. Box 3 needs constant reappraisal, as do the important sentiments expressed in paragraphs 217 and 218 on page 41 of HL 101. That matter needs to be looked at again.
	If subsidiarity arguments have received fairly short shrift, with no examples so far of any measures being overruled or struck down by the court, this poses uncertainties if these proposals are revived in one way or another. Will the Minister therefore confer further with the law officers in due course to ascertain the scope for modernisation of this subject, in the sense of a level field of symmetry between approval and disapproval in the future? If the legal parts of the separation of powers are to be deployed, it can serve the European citizens in all the member states with an objective justiciability which gains confidence as the cases unfold in the long-term future. We will then begin to make substantial progress, because it is a legal as well as a political matter. The court needs to be "neutral" in this deep sense, without neglecting the constitutional obligations of the treaty or treaties.
	I was impressed by Professor Wyatt's evidence to the committee. It reminded us, fairly, that in the Union's history so far, the subsidiarity principle has been offered only scant or token attention. I refer to what he said in paragraph 1 on page 3 of the extract of minutes of evidence. Will this not also mean that we should not become over-anxious about these matters? There will be many occasions when the question of subsidiarity will not arise anyway because of the primordial examination of the subject.
	Paragraph 2 explains the realpolitik—to use the trendy term of this debate—of how member states have operated in past instances. Professor Weatherill reminded us in his evidence that legal and political subsidiarity are two different animals, but they come together in a practical way. If the system is launched eventually, a formal and informal consultation process between a coterie of member states, as Professor Wyatt suggested, would presumably be the approach that the Government too would see as a natural step forward.
	I turn briefly to the evidence offered both orally and in writing. We had the interesting offerings of our own distinguished Liberal Democrat colleague, Mr Andrew Duff MEP, who is an expert on the constitution. He is a well known enthusiast for communitarian common actions. He criticised the six-week timetable—especially with the two Houses here jostling each other for opinion-giving. As we have said, COSAC also felt that that was too short a time. Moreover, Andrew Duff clearly favoured the Commission's own test of subsidiarity rather than have national parliaments deal with these matters. I thought that that was a very disappointing stance to take.
	More enthusiasm by citizens for Europe is created in practical terms if there is full involvement by national parliaments. I preferred the approach taken by the noble Lord, Lord Harrison, in Question 96, as it better served the will of most members in that report creation. I am thinking of the other place and this Chamber together. However, Andrew Duff was able to reassure some here, I assume, when he described how the arrival of the UK, Denmark, Sweden, and now many of the new countries in the EU 10, would continue to sharpen the sift through which all proposals for legislation must be put.
	We are confronted with a number of other complicated problems that I do not have time to go into tonight. This whole field is a practical matter rather than one of saying, "We have done our report and therefore we must stick to everything that is in it"—and by that I mean no discourtesy to the people who wrote it.
	Should countries involve themselves at the much earlier White or Green Paper stages through some kind of formal processes? Perhaps mercifully, with the rethinking time that we have now, the system can be considered again. It is a complicated matter and it is better not to rush it. Like the period of reflection on the constitution itself, this rethinking time gives us an opportunity. Local and regional government could be mentioned as well. They need a place in the sun, but I do not have time to refer to that.
	I conclude with the noble and sensible words of Article 6 of the Amsterdam Protocol, quoted on page 10 of the follow-up report of 30 November:
	"The form of Community action shall be as simple as possible . . . The Community shall legislate only to the extent necessary. Other things being equal, directives should be preferred to regulations and framework directives to detailed measures".
	With that in mind, we can engage the citizens of all the member states and the national parliaments fully. We have taken a lead in that with one or two other national parliaments. There is more to be done, but there is a bright future for Europe if everyone gets together.

Lord Howell of Guildford: My Lords, we all admire the way in which the noble Lord, Lord Grenfell, chairs and presides over the European Union Committee and its widespread family of sub-committees. It seems to me that this report and the follow-up report are well up to the standard of the reports produced from that network of committees.
	I say at the outset from this position in your Lordships' House that we on this side are wholly in favour of substantially more say by national parliaments in the affairs not merely of the Union but of the whole network of international obligations. We are also wholly in favour of greater co-operation. I am happy to have heard about the way in which the COSAC organisation has developed and grown in confidence and strength over the years. Greater co-operation and greater say by national parliaments is a principle to which we would all adhere, and not just in Europe.
	As the centre of economic gravity moves eastwards to Asia, the parliaments of other countries are just as close as those of Europe—they are only one click away in terms of electronic communication. We should be very close indeed to the Parliament of Japan and the Lok Sabha in Delhi in an age of globalisation. It is not just a question of more say by national parliaments; I hope that they will also have more power—a proposition that raises questions about relations between parliaments and executives, as the noble Lord, Lord Woolmer, rightly raised.
	In an interdependent world, where, more than ever, we are bound by a massive web of obligations, the question of holding our governments to account is more important than ever. That point was raised in the very interesting speech of the noble Lord, Lord Wallace of Saltaire, and—dare I say this without ruining his reputation?—I agreed with what he said a little more than I have done in the past. Am I reading too much into his remarks when he seemed to grasp the realisation that social policy should be as near the shop floor and the citizen as possible and that the whole principle of trying to push it away to remote multinational or supranational institutions is flawed? I like that tone and I hope that we will hear more of it.
	It seems to me that our Parliament is better placed than a decade ago to take on the kind of additional functions suggested in the report of the noble Lord, Lord Grenfell. Both Houses are much better equipped. The noble Lord, Lord Woolmer of Leeds, raised the practicality of taking on these functions. I think it is possible for our Parliament, at least, which on the whole works extremely well, with an elected Chamber and a cooling Chamber in which we are now sitting. We are in a position to take on these additional functions in a way that could not have been contemplated 10 or 20 years ago.
	This is an extremely useful report for promoting and thinking about this issue. Of course, in a sense, it got overtaken by the constitution fiasco. However, I agree with those who say that, if subsidiarity means seeking ways of bringing national parliaments more into the game, it does not need additional legal force. We always needed to press the case for national parliaments to have more say, a case which gets stronger and stronger in the modern world. That existed before the constitutional treaty attempt, it exists now and it will exist afterwards. I hope I do not disappoint the noble Lord, Lord Kerr of Kinlochard, in saying that I do not think that has got all that much to do with the treaty, which isn't going to happen anyway.
	The noble Lord, Lord Grenfell, raised the question of those critics who said "Oh, this is bringing in something by the back door". I think we should have been bringing it in by the front door before the treaty, and should continue to do so. This is the crucial issue of how, in this interdependent world, we maintain contact with citizens and people at a national and sub-national level more effectively than we have in the past; otherwise we lose all popular support and, eventually, the popular mandate. Here we have the central need to challenge centralism through the front door. We should make no apologies for that.
	Of course, the question arises of whether the defunct constitutional treaty helped much. I have already indicated that I do not think that it did. Our view, all along, was that the yellow card subsidiarity idea was not nearly effective enough to do the job. I quote two distinguished witnesses to this operation. Professor Wyatt said that subsidiarity is:
	"a principle ill-designed to achieve the objective of ensuring that decisions are taken as closely as possible to the citizen".
	That seemed pretty damning to me. Then Professor Weatherill came before the committee and said that the principle of subsidiarity had:
	"done little to curb an institutional tendency at the EU level to err on the side of centralisation rather than preservation of local autonomy".
	The most obvious interpretation of that—and, I think, the right one—is that the principle of subsidiarity is too weak a weapon and concept to do the job that we all know needs to be done, with increasing urgency, which is to challenge the tendency to centralism. That is my opinion.
	There are two much more fundamental issues behind the thinking in this report which should perhaps have been addressed, and perhaps now have to be; whether that is best done through more effective operations of committees in this House or in other ways, I do not know. First, should this subsidiarity mechanism of challenging the competences and powers of the Commission and the EU itself—which we want to develop and strengthen—be confined to future activities and legislation? What about the vast, overloaded, verbose, almost unintelligible acquis, with its 98,000 inscrutable pages? Is that to be left? Should that not have the subsidiarity filter, or comb, applied to it with some vigour? Hitherto, such a thought has been dismissed. We have always been told that the acquis is sacred and cannot be unravelled. I think that the Eurocentrists will have to give way on that before too long. At the moment dogma prevents them agreeing with it. But the fact is that the more we look at the enlarged Europe and consider the accession of the new countries, the more obvious it is that the sacredness of the acquis will have to be challenged. The instruments we are talking about today may be the instruments for doing that.
	The second fundamental question, which, understandably, is not addressed in the report but is hanging right behind it, is whether, if we are looking at the whole process of law-making and involving national parliaments in that, as paragraph 250 of the report says is the purpose and aim—we all agree—do we leave unchallenged the monopoly power of the Commission to initiate legislation? That is another sacred cow which no one has dared to shoot. But if we are now moving towards a new treaty pattern, given that the constitutional treaty in my view will not fill the need or be revived, should that issue not arise as well?
	So, I leave those questions hanging in the air. I realise they are fundamental, but unless we face up to them in due course, we will find that subsidiary is, as the professors remind us, a very weak and inadequate weapon in dealing with this central issue.
	I enjoyed, in a curious way, the Government's reply to this report. It is a series of eager assents. It says that it was a matter for the House—that is easy for civil servants to write. Then we suddenly get to an item where it appears that the committee is actually telling the Government to do something, and up come the weasel words. They are in paragraph 10. The Government are busy agreeing with the committee, but, when it comes to even the yellow card, they hastily say, well, of course that is a good idea but they may have to override it, and they agree—big concession—that they will not do so without first explaining to Parliament why they have overridden the committee's views. I do not see governments changing from that view for the time being, but they should continue to be pressed by our Parliaments, because that is our job.
	As for Article 8 and the submissions to the European Court of Justice to get a ruling on whether some competences have been exceeded—this is a small point—there seems to be something wrong with the print on page 8 of the follow-up report. As I read it, paragraph 15 is the committee's views and therefore should be in bold, whereas it is the Government's views which are in the normal print. I do not know what has gone wrong there. Anyway, what emerges at the end of paragraph 15 is paragraph 16, which, as noble Lord, Lord Grenfell, rightly said, is bureaucratic speak for the fact that the Government have no idea about Article 8. They have not done the work. They have given up because the constitution is on hold. And we are all left in mid air about that.
	I hope I have indicated some of our approval for the issues being tackled. We believe that we need to go further if we are to get a better and fairer Europe and to design a treaty or pattern of rules for the future that are better than anything that could be offered by the draft constitution, which has now been so vigorously turned down.
	What we see from this side is an amazing reluctance by the Government to seize the initiative in these matters. I know it is all called a period of reflection, but there does not seem to be very much reflection going on. The UK presidency, which is now coming to an end, has been, as agreed by all sides, a complete flop. There remains a tendency in looking at these matters—and here I think that the noble Lord, Lord Haskel, spoke with characteristic percipience—to be inward looking and to try and repair bureaucratic problems with bureaucratic repair kits. That is of no interest to the wider public. We should be putting forward new proposals for a better, fairer, more equal Europe suitable for the 21st century. Of that, I see no constructive sign in government circles.

Baroness Royall of Blaisdon: Thank you, my Lords. I am grateful to all noble Lords for being here at this late hour rather than merry-making. I pay tribute to the noble Lord, Lord Grenfell, and all members of his excellent committee for its excellent stream of excellent reports.
	As your Lordships will recognise, the Government have been a long and consistent advocate of strengthening the role of national parliaments in the European Union. It was therefore with great pleasure that I read the 14th and 15th reports of the European Union Committee and I listened with interest to today's debate on the early warning mechanism and the constitutional treaty. As noble Lords have highlighted, subsidiarity is an important principle. Indeed, it is an essential element of good European governance in the 21st century.
	The Government have consistently advocated strengthening the EU principle of subsidiarity. Shortly after we came to power in 1997, we were instrumental in strengthening the protocols on subsidiarity, proportionality and national parliaments in the Treaty of Amsterdam. We continued to support strengthening the role of national parliaments during the process of the Convention on the Future of Europe and subsequently throughout the negotiations on the intergovernmental conference. If ratified, the treaty would introduce revised protocols on subsidiarity and national parliaments—a matter addressed by the report and by many noble Lords today. If applied correctly and rigorously, subsidiarity would ensure an effective balance between legislative action by member states and by the European Union. I do not agree with the noble Lord, Lord Howell, that the principle is too weak. However, I agree that it needs to be properly applied. It must be properly implemented. It would then ensure that the European Union acts only if the objectives of the proposed action cannot be met by member states and can be better achieved by the European Union.
	My noble friend Lord Harrison and the noble Lord, Lord Wallace, gave us a clear explanation of what could and should be done at the different layers of European governance—at national and regional level. As my noble friend Lord Haskel pointed out, subsidiarity also has a practical consequence for the functioning of the single market. I fully concur with his view that we need subsidiarity that also encourages the kind of localism that he described.
	I agree with the noble Lord, Lord Kerr, that the inclusion of an important principle in the constitutional treaty should not tarnish that principle. I especially welcome the comments of the noble Lord, Lord Howell, today and hope that we can build on what he said and have some sort of cross-party agreement about how to take forward the important principle of subsidiarity and implement it. The Government are giving active consideration to implementing the spirit of the subsidiarity protocol. As my right honourable friend the Foreign Secretary said in the House of Commons on 6 June, subsidiarity is a long-standing concern and one that we will pursue. We also co-hosted the conference in The Hague mentioned by the noble Lord, Lord Grenfell. The presidency conclusions will point the way forward. The Foreign Secretary has written to the Austrian Foreign Minister, encouraging the incoming presidency to take all those issues forward.
	I certainly agree with the noble Lord, Lord Bowness, that the excellent initiative taken by COSAC should not be seen as the introduction of the treaty by the back door. It is pure common sense. My noble friend Lord Woolmer advised us of the new challenges that we would have to meet to implement an effective system. We need to discuss those issues much further.
	Naturally, the Government welcome the committee report and the debate in your Lordships' House today. The thorough investigation and research that went into the report is invaluable. We certainly share your Lordships' hope that the agreement of the treaty text itself has provided, and will provide, a great stimulus to more effective scrutiny by all national parliaments.
	We believe that, whether or not the treaty comes into force, member state parliaments should play a stronger role in ensuring the implementation of the principle of subsidiarity in order to achieve the right balance between action at regional, national and EU levels, and to help connect citizens with European decision making. It is essential to create a culture of co-operation between EU institutions and national parliaments and, as the noble Lord, Lord Grenfell suggested, clearly desirable to have an exchange of information between national parliaments.
	We have repeatedly made clear that we see the treaty as a sensible set of rules for an enlarged EU. But we have been equally clear that, following the French and Dutch "No" votes, it would not be sensible to set aside parliamentary time for a Bill to prepare for a UK referendum. The June European Council called for a period of reflection and for a broad debate. Your Lordships' report makes a thorough and constructive contribution to that debate. Other elements that were included within the draft constitutional treaty must be a part of that debate.
	We welcomed the suggestion from COSAC, under the presidency of the noble Lord, Lord Grenfell, that those national parliaments wishing to participate should conduct a subsidiarity and proportionality check on a forthcoming EU legislative proposal, or proposals, on the basis of their role as recognised in the current treaties. The constitutional treaty text recognised that national parliaments may decide to consult regional parliaments with legislative powers. That seems a sensible way forward. As a Welsh Peer who has taken a keen interest in the views of both the Welsh Assembly and the Scottish Parliament, I know that it is particularly important for those bodies and for the people that they represent.
	We welcome the initiative of your Lordships' Select Committee on the European Union to invite input from sister committees in the Scottish Parliament and the Welsh Assembly and, in due course, it is to be hoped, from the Northern Ireland Assembly. Yet we appreciate that arrangements for consultation with devolved assemblies should be left to each member state.
	In order to stimulate discussion on the scrutiny of subsidiarity the UK presidency co-hosted with the Dutch a "Sharing Power in Europe" conference in The Hague on 17 November. That was a small but important achievement of our presidency, because its consequences are potentially far-reaching. The conference recognised the need for a genuine partnership between the EU institutions, member states and their parliaments to strengthen democratic accountability and transparency while helping to build popular confidence in the way that power is shared in Europe. In response to the noble Lord, Lord Howell of Guildford, we would indeed also like to see a closer relationship between parliaments outside the European Union. However, that relationship would be quite different because we do not share membership of the European Union with those parliaments.
	The conference raised a number of ideas for greater partnership within the framework of the current treaties and we are grateful to the noble Lord, Lord Grenfell, for his contribution as its co-chairman. The conference encouraged member state Parliaments, first, to develop their scrutiny role to ensure democratic debate at an early stage of the EU's multi-annual and annual programmes, consultation documents, road maps and legislative proposals. It encouraged them, secondly, to provide the European institutions with an early indication of their perspectives on where member states should take action, and where action should be taken at an EU level; and, thirdly, to participate in the efforts of COSAC to support the scrutiny work of national parliaments.
	As your Lordships will agree, the democratic life of Europe revolves to a great extent around national and regional parliaments. We believe that the key to improving implementation of subsidiarity will be to get national parliaments and regional bodies more directly involved at an earlier stage.
	National governments need to engage with parliaments more closely on European regulation and, in turn, parliaments need to be better equipped to get involved in policy discussions within the European Union. As your Lordships noted, in many cases legislation coming out of the Commission is already well advanced before national parliaments start to examine it. Sir Digby Jones, Director-General of the CBI, drew attention to the importance of national scrutiny of EU legislation in a report in April 2005. He highlighted the potentially significant impact of EU legislation on UK business and suggested that Parliament should engage early and proactively in influencing the development of the thinking of policymakers in Brussels rather than considering formal legislative proposals at a stage when many minds have already been made up and compromises negotiated. This is, I know, an important factor behind current thinking on reform of the scrutiny system.
	It is also clear that trades unions and civil society would agree that early and proactive engagement by Parliament is essential. It would mark a welcome step forward if Parliament were to debate the EU's annual and multi-annual work programmes. As an eternal optimist, I believe that this might also assist in stimulating media interest. Currently, our regional and national media pay little attention to the debate on EU legislation until it is too late. This is a matter of shared frustration for many noble Lords taking part in the debate. It leads to ill-informed press coverage of the EU and an ill-informed society. Early debate on European proposals in regional and national parliaments should help to ensure early and informed public debate, generating wider public awareness. This in turn would provide the institutions of the EU with early warning of local or national sensitivities.
	I turn to the questions raised on the transmission of documents. We believe that it is important for national parliaments to receive as soon as possible draft legislative proposals and substantive amendments, together with the relevant justifications. In the electronic age, it is difficult to see where the problem lies. I understand that an agreement must be reached between the Commission, the Council and member states about the logistics, but I am sure that any difficulties must be surmounted in the not too distant future.
	In respect of the European institutions, the Commission is already strengthening its consideration of subsidiarity and proportionality of legislative initiatives. I note the comments of the noble Lord, Lord Neill. However, there has been a growing understanding of the importance of subsidiarity in the European institutions, despite the examples he cited. This understanding is essential and is being both encouraged and enhanced by the growing interaction between civil servants of national governments and the European civil service. I believe it is also true to say that since the accession of the Nordic countries to the European Union, the principle of subsidiarity is much more widely understood, thanks to the participation of those countries in the European institutions. We hope that the Council and the European Parliament will also examine the subsidiarity and proportionality of legislative initiatives at an early stage. My noble friend Lord Harrison was right to remind us of the role of MEPs, individuals in the Commission and UKRep. I can testify that all these groups and the institutions are much more open than most people either understand or choose to believe. They are also extremely well informed about future policies while they are still in the gestation period.
	All partners need to ensure proper implementation of the existing arrangements for applying subsidiarity, including the preparation of justifications for legislative proposals and amendments. I have noted the comments made by the noble Lords, Lord Howell, Lord Grenfell and Lord Dykes on the Government's response to the section in the report concerned with Article 8. It is difficult to imagine a situation in which the Government would not want actively to take forward a representative request from the UK Parliament. However, I do not want to be sidetracked into a legal discussion when it is important for us to focus instead on what we can do within the current treaties to increase the role of Parliament in implementing the principle of subsidiarity. I note the disquiet expressed by noble Lords and I will see whether I can provide them with a more comprehensive answer in due course.
	In conclusion, the Government welcome the committee's 14th and 15th reports on strengthening national parliamentary scrutiny of the EU and this debate. We believe that, irrespective of the future of the constitutional treaty, it is important for national parliaments to be involved in EU legislation more directly and at an earlier stage. As a number of noble Lords have suggested, it is important to get more people involved in the European Union, to stimulate their interest and to engage them in dialogue about the actions necessary at local, regional and national levels. There are a number of things that the Government and Parliament can—and must—do together to make European politics and policies more accessible.
	Three things come to mind and we have been actively pursuing them throughout our presidency. First, we need to improve European regulation. Secondly, we need to increase transparency. The Government are working in the Council and its working groups to achieve this at the earliest opportunity. Thirdly, and this is the focus of the debate, we need to implement the principles of subsidiarity and proportionality.
	As our enlarging European Union changes and responds to the opportunities and challenges of globalisation, the principle of subsidiarity assumes greater importance. People must have confidence that the principle is being implemented and that decisions are being taken at the appropriate regional, national or European level as close to the citizen as possible. That is common sense. It is also good governance. Proper and effective scrutiny is not only the best means of ensuring subsidiarity, it is a means of increasing transparency and nurturing trust. As has been widely agreed today, national parliaments are key to the scrutiny of subsidiarity and I am confident that the European committee will play a vital role in the further deliberations on this issue, in the COSAC initiative and in the future scrutiny of the implementation of the principle of subsidiarity.
	Finally, as the noble Lord, Lord Dykes, noted, there is indeed a bright future if the institutions of the European Union and national parliaments work more closely together.

Lord Grenfell: My Lords, I would like to thank all those who have participated in this debate for their excellent contributions from both Front and Back Benches. I was much heartened by the degree of consensus that we have displayed in our discussion on this very important topic.
	The hour is late. I would love to be able to reply to one or two points, and I shall briefly mention three.
	First, the noble Lord, Lord Wallace of Saltaire, urged a much more frequent dialogue with MEPs. We are indeed stepping up the dialogue as best we can but it is problem of logistics rather than will. If we can solve the logistical problem then it will be even better.
	Secondly, the noble Lord, Lord Howell, raised the question of retroactive monitoring of legislation. Commissioner Verheugen, who is in charge of better regulation, is embarking on just such an exercise. The question that remains is the degree to which national parliaments eventually could participate in such retroactive monitoring. When the Select Committee's report on better regulation comes before your Lordships' House for debate we will go into this in more detail.
	Finally, the noble Lord, Lord Kerr, at the close of his very helpful intervention urged us to take action now. I would like to assure the noble Lord that we are not letting the grass grow under our feet. The subsidiarity and proportionality check is under way as we speak and we shall pursue it with the utmost vigour.
	I thank noble Lords for making this a most worthwhile debate, even though I wish it had taken place in prime time rather than late on a Thursday afternoon.

Lord Warner: My Lords, I should quickly like to summarise the key elements of the new charges regime before us today and then respond in a little more detail to the issues raised by the amendment to the Motion.I have already written to the chair of the Merits Committee and addressed the committee's concerns in detail. I have copied the letter to other noble Lords.
	At the moment those NHS patients who are liable for charges pay 80 per cent of the dentist's treatment fees. From April 2006, dentists will work for new NHS contracts. These will have an annual contract value, agreed in advance, in return for which they agree to carry out a certain number of courses of treatment over the course of the year. A new system of patient charges, not related to fees for individual items of treatment, is therefore needed. We asked Harry Cayton, the National Director for Patients and the Public at the Department of Health, to review the current system of patient charges, with considerable input from representatives of consumer interests and dentists, including the British Dental Association and the Consumers' Association, which both signed up to the report's recommendations at the time of its release.
	The review recommended that in future there should be a series of banded charges linked not to individual items of service, such as fillings or extractions, but to the overall course of treatment that a patient receives, with three bands related to the level of service provided in this course of treatment. The regulations before us were drafted on the basis of that report.
	We believe that the new dental charging system will be fairer because the maximum cost of NHS dental treatment will be reduced by more than a half; it will be simpler because we are moving from 400 individual charges for individual treatment items to simple price bands; and it will be clearer because patients will be sure of knowing how much they are being charged and what treatment they will receive.
	Under this new scheme, patients will make one single payment for their course of NHS treatment. For example, a patient requiring a filling would pay a single Band 2 payment which would cover not only the initial examination but the preventive advice received and the filling. Patients who do not currently pay dental charges, such as children, will continue to receive free dental care.
	The new dental charges systems also reflects guidance from the National Institute for Health and Clinical Excellence that patients be recalled within between three months and two years depending on their clinical need, as opposed to the traditional six-monthly recall. For a large majority of the population, a six-monthly check-up is unnecessary.
	A 12-week public consultation on the draft regulations took place over the summer and we published our response on 2 December. Broadly, consumer representatives were cautiously supportive of the proposals but had some concerns about particular aspects of them. The Consumers' Association commented that the proposals will,
	"bring real improvements for patients".
	Patients and the public agreed that a new dental charging system was needed and were in support of many of the aims of the proposals. They agreed that our proposals would improve affordability for those with higher treatment needs.
	The BDA was represented on the review group and initially supported the proposal for a charging system based on three bands. I have already dealt with its recent specific concerns in the letter to the chair of the Merits Committee.
	The charges included in the consultation document were at 2005–06 prices and were rounded figures. The level of the charges for 2006–07 have now been finalised at £15.50 for a Band 1 course of treatment; £42.40 for a Band 2 course of treatment; £189 for a Band 3 course of treatment; and £15.50—which is the same as Band 1—for an urgent course of treatment. The cost of the most expansive Band 3 course of treatment has been reduced by a half from £384 to £189, making dental treatment significantly less expensive for those charge payers with the greatest oral health needs—a significant improvement. These charges are at 2006–07 prices and will not therefore require any further uplift before they are expected to come into force.
	I turn now to the amendment to the Motion. On the question of forward planning and communication, I should like to make three points. First, we could not advertise the new charging regime without the necessary parliamentary approval. Proactive publicity prior to approval from Members of this House and the other place would not have been welcomed, I would suggest, by many noble Lords opposite. Secondly, we have none the less been clear since Harry Cayton's report was published on 7 July, more than five months ago, that we favoured a three-band system of patient charges. Thirdly, we received more than 400 responses to the consultation and the charging regulations do not come into force for another three months.
	As I made clear in my letter to the Merits Committee, we are putting in place a proactive programme of communication, subject to Parliament's approval of the regulations, with patients' leaflets and posters and, for the first time, backed up by the power of regulation. I do not believe it is fair to say that the level of the charges will have a disproportionate impact on those who can least afford it. There is no increase for the 5 per cent of people in band 3 who need complex bridgework and dentures, with charges reduced by more than a half, from £384 to £189. These are often required by older people who are least able to afford an increase. I hope we can agree that patient charges for the most complex treatment are cut in this way. In Band 2, which covers all treatments apart from appliances, the charge will be £42.40. Around 42 per cent of patients fall into Band 2. We expect three-quarters of these patients to pay more than previously and a quarter will pay less—about 10 per cent of the total number of patients.
	I turn now to Band 1. As I outlined in my letter, the new charge is little different from the current cost of a basic scale and polish and check up, but it does provide around 53 per cent of patients with a more comprehensive diagnostic and preventive package of care where clinically necessary. We are cutting charges in half for complex bridgework and dentures in Band 3; reducing costs for a quarter of people in Band 2; and offering negligible change in Band 1, but in return for access to a more comprehensive package of care. Just over two-thirds of patients may well be better off as a result of our proposals.
	Inevitably, there are some people who, relative to the previous current charging system, will pay more at a single visit. The consultation document made this clear, but also said that it was recognised by the Harry Cayton group that, at the point of change, there could be some winners and losers but that a banding option improved overall affordability and equity and that individual patients who lose on some occasions will gain on others. It is absolutely clear that our proposals reflect the analysis of the members of the Cayton group. It is just not the case that there will be widespread increases. The alternative is to keep the current 400 charges, maintain confusion for patients, operate a system that patients themselves do no want, and fly in the face of what all members of Harry Cayton's group recommended.
	I turn to the next point raised by the Merits Committee. It is simply not the case that charges are being raised because we need to protect dentists' income as their activity falls. As a matter of principle, we have said that we will not raise more in charge income as a proportion of overall expenditure on dentistry than now. The patient charges have been modelled to deliver the same 26 per cent of overall expenditure on dentistry as they do now.
	I will now address the suggestion that the impact of charges will be greatest where access to dental services is more limited. If the noble Baroness, Lady Neuberger, is referring to areas where demand for NHS dental services exceeds the current availability of services—which we and the NHS are successfully tackling in many parts of the country—then the new patient charges would not make a difference. We have made very clear that we want dentists to continue to see their existing patient base—charge payers or otherwise. We have also strengthened the regulations to make clear that if a dentist currently concentrates his NHS commitment on children and exempt patients, he may continue to do so, as long as the local primary care trust is in agreement.
	The new arrangements for local commissioning also start to address the concerns of the noble Baroness. The money devolved to PCTs is ring-fenced for dentistry and when a dentist leaves the local area or retires, the resources return to the local PCT to be reinvested in local dental services in ways that best meet local needs. Some PCTs with personal dental services practices have already used their local commissioning powers to address service equity.
	In conclusion, the key issue that we must all be clear about is that the new system is fairer, simpler and clearer. Charges are cut in half for those with the greatest needs, three well-advertised charge bands replace 400 obscure charges, and overall the new system is a good deal for people with less complex needs, many of whom will visit the dentist less often in future, allowing other new patients to access primary dentistry. Charges raise only the same proportion of overall expenditure on dentistry—26 per cent—as they do now. I hope that I have reassured the noble Baroness in particular about some of her concerns. I commend these patient charges and the regulations to the House. I beg to move.
	Moved, That the draft regulations laid before the House on 22 November be approved [11th Report from the Joint Committee and 17th Report from the Merits Committee].—(Lord Warner.)

Earl Howe: My Lords, the House will be grateful to the Minister for introducing the order which was described by the Government Whip's Office as being of "medium controversy". To my mind, and especially after listening to the noble Baroness, it carries with it a considerable degree of controversy. I should like to set out for the Minister some of the reasons why it causes me as well as the dental profession a good deal of concern. My noble friend Lord Colwyn will be supplementing my remarks from his own perspective as a dentist.
	The new price bandings provided for in the regulations represent, as the Minister said, a radical departure from what we have had up to now. Like the noble Baroness, I am the first to acknowledge that a simplification of the current system is a thoroughly desirable thing. I have no quarrel with the general concept of what the Government are seeking to do. The problem I have is with the detail. The first thing that strikes you when you examine the new charging structure is that, for a very significant group of patients, the cost of going to the dentist will be a great deal higher than it is now. The entry point for having anything done to you at all will now be £15.50. At the next tier of the scale, for treatment, you will be charged £42.40, and by the Government's own admission, three-quarters of patients falling into Band 2 will pay more than previously. The noble Baroness rightly mentioned the cost of denture repair, which is a further concern. It is no doubt true that, under the NICE guidelines, a lot of patients will not be visiting the dentist as often as they used to, but a lot will be. For many, £15.50 and £42.40 are significant sums. The first issue, then, is the affordability of the charges for those on fixed or low incomes, particularly the elderly. I cannot believe that the new bands will not have a very pronounced affect on the uptake of dental treatment among these groups, and that is a considerable worry.
	That is why, if we change the remuneration structure for dentists in this fundamental way, we ought to have some clear idea about how it will affect patient behaviour. Will it increase demand for dental services and, if so, from which segments of the population? Will it reduce demand and, if so, in what respects? I suspect that the Government, if they are honest, have no idea either way. That is a profoundly unsatisfactory state of affairs. If the new charges had been piloted in a few selected PDS practices—and I understand why that idea presented insuperable difficulties—we might have had quite good answers to those questions. But we do not. So, we must surely ask the Minister to institute some means of measuring the impact of these reforms in terms not only of dentists' activity but also of improving access to dentistry. Will primary care trusts be obliged to collect this kind of data?
	The second thing that hits you when you look at the charging structure is the element of perverse incentive. One of the things that I had hoped to find in it was a recognition of the importance of preventive care. It has been a criticism of the dentists' remuneration structure over many years that they have had an incentive to treat but no incentive to encourage patients to look after their own dental health in such a way as to make treatment unnecessary. How do the regulations recognise that concern? While the inevitable consequence of moving to a very much simpler pricing structure is that you move away from a strict fee-per-item approach, it is obvious that if patients realise that it will cost them the same to have three teeth filled as it will to have one tooth filled, they will be likely to want to cram in as many treatments as they can to a single visit. If that happens, the idea of dentists being able to spend time with patients talking about oral health promotion goes out of the window—the time will have gone.
	Similarly, if you say to patients that they can have emergency treatment for £15.50, which would normally cost them £42.40, what is that but a message to them not to bother to make regular appointments with their dentists or look after their teeth as carefully as they should? The Minister may say that he would not behave in that way and nor for that matter would I, but if you are of limited means and did not understand the importance of maintaining good oral health, which a lot of people do not, that is exactly what you might do. Personally, I can see a strong case for making the emergency charge band more expensive than is now proposed and the charge in band 1 slightly less expensive. As it is, I simply do not begin to see how the new charges will encourage people to adopt a preventive approach to oral healthcare. Perhaps the Minister will enlighten me on that.
	One of the other avowed aims of these arrangements is to improve clarity for both the public and dentists about the costs of NHS dental care. To be pedantic about it, I do not think that the costs of dentistry will be made any clearer to either side. The thing one hopes for is that there will be greater clarity on the price of dental treatment, but how will that happen? The one positive thing that you can say about the current system—complexity aside—is that it is at least transparent, but you can hardly say that about the proposed system, which needs explaining. Dentists have got to have an easy and effective way of communicating the tariffs to their patients. However, the BDA tells me that it is baffled by several elements of them even now. For example, the Minister in another place implied in Standing Committee that under band 1 the dentist is obliged to provide a set package of services for every single patient. Is that correct? If it is, it is not self-evident.
	That is why it is incumbent on the Department of Health to promulgate the details of these changes to patients and the public. I would be grateful if the Minister could give us further and better particulars of how they plan to do that because the Minister in another place was pretty vague on the question. The noble Lord, Lord Warner, has helpfully expanded on the Government's plans in the letter to the noble Lord, Lord Filkin, which he circulated today, but it would be useful to have the main points on the record.
	For all these reasons, I find myself in sympathy with the terms of the amendment tabled by the noble Baroness, Lady Neuberger. She is perfectly right that even if the new charging structure were not controversial in any particular and even if everyone agreed on it, it would still be necessary to have an effective communication strategy for patients because the new tariffs represent such a marked departure from the system in place at the moment. Patients need to understand that.
	I know that the Government believe in all sincerity that they have responded to the concerns of dentists constructively and that they have got the formula right. Despite that, I hope that, at the very least, the Minister will recognise that there are legitimate doubts out there that the formula is right, and in the light of those doubts we need his assurance that the effect of these regulations will be closely monitored and the new arrangements within them will be subject to review after an appropriate interval.

Lord Colwyn: My Lords, I also thank the Minister for the powerful way in which he explained the orders this evening. I remember him taking me aside after the last election and saying how pleased he was that he was not going to have so much to do with dentistry. I am not quite sure where it all went wrong. I also thank the noble Baroness, Lady Neuberger, for her amendment, which I support, and my noble friend Lord Howe for the many aspects of this order he has covered. Your Lordships will be delighted to hear that I have torn up most of what I was going to say, owing to the lateness of the hour, but there are one or two things I should like to clarify this evening.
	I commend the Government's intention to change the system by which dentists are paid with a specific fee for a specific item of service, referred to as the "treadmill". I worked within this system from January 1966 for over 20 years. I should remind the House that dental practices are self-employed independent small businesses, and that the dentist is responsible for purchasing or leasing the premises. Highly specialised equipment, typically costing £40,000 for each treatment room, must be provided and maintained. The dentist is personally responsible for staffing the surgery with nurses and receptionists. He or she pays the specialised laboratories that manufacture crowns, bridges and dentures, and all the costs of implementing nationally agreed legislation, such as the Disability Discrimination Act, without any additional funding.
	All these costs are increasing year by year at an alarming rate. Implementation of health and safety legislation is a serious cost problem for all practices. NHS dentists do not receive grants or specific funding for equipment, materials or surgeries. Any capital investment is a personal choice, and is funded from the fees per item of service arrangement. With costs representing about 50 per cent of the total turnover, dentists have to work for half of their time to cover costs. I remember seeing between 30 and 60 patients every day. That was a treadmill.
	So what is new? The basis of the new system is that the contractor will complete a number of units of dental activity, as set by the local PCT, in return for monthly payments, based for the first three years on past gross turnover. In the transition from the current GDS system, the UDA requirement and contract value will be calculated according to the level of service activity and earnings in the current GDS, minus 5 per cent. The Department of Health claims that this will get dentists off the treadmill, but to me it sounds like another treadmill. Will this new treadmill not become even more onerous as the next three years are monitored and dentists are allocated a new quota for successive years? Will they be penalised financially if the total is not reached?
	The noble Baroness, Lady Neuberger, has reminded us that the British Dental Association and consumer groups have expressed concern about the incremental steps in the charge bands, which may well prove a barrier to accessing appropriate dental care. There is no specific encouragement to undertake preventive treatment, and I am concerned that patients may choose to wait for problems and then claim for an emergency course of treatment rather than incur a band 2 payment. The BDA and patient groups have not been informed how this new charging system will be explained to the public. For example, under the current system, an examination with X rays incurs a patient charge of £9.84, compared with £15.50 under the new system. These charges must be made clear to the public and justification given for the perceived increases. It is vital that the public are made aware that these charges are not directly part of the dentist's income. The new system is supposed to be cost-neutral.
	I am sorry there is nothing in the regulations to address the issue of missed appointments or late cancellations. During the Standing Committee debate in another place the Minister accepted that this was a key issue for dentists, and suggested that, if there was a sudden and dramatic change in the number of missed appointments, it could be analysed with a six-month review. This is helpful, but the BDA believes that a cancellation charge should be included in the regulations to act as a deterrent, and that dentists should be able to claim UDAs for missed appointments or late cancellations. I should grateful if the Minister would confirm this.
	Neither the regulations nor the Explanatory Notes mention any arrangements for protecting the dentist against patient charge shortfalls. Ever since charging for treatment became part of the system, dentists have had to act as debt collectors for the NHS. PCTs may have a problem with uncollected NHS charges—or "dentists' bad debts", as the DoH describes them. There is a good case for the PCT to assume responsibility for uncollected NHS charges as it does in every other area of the NHS.
	I was surprised to see that the Explanatory Notes, in paragraph 7.12, state:
	"no dentists' professional representative organisations or patients who responded to the consultation proposed an alternative system of patient charges".
	This week I have spoken to Roger Matthews at Denplan and Quentin Skinner at DPAS (Dental Payment Administration Service). Denplan is the largest organiser of insurance-based capitation contracts. Both organisations cover patients for treatment and their average monthly charge is £15 or £16. Many dentists are moving to these and similar organisations to run their patient charging system. Denplan reports a 25 per cent annual increase year on year. The dentists can work at whatever level is preferred and all finances are taken out of their hands. No treatment bands, no UDAs, no money changing hands in the practice, no bad debts. But it is the dentist's choice as to how the practice is run, and many prefer to stay with the NHS.
	I do not understand why the Department of Health did not consider a similar NHS insurance-based system, with free dental check-ups and assessment, identification of exempt patients and monthly payments determined from the total dental budget and an individual's ability to pay. The difference between a capitation scheme and the Government's UDA target system is that under capitation, if the workload is reduced by improving the patient's oral health, the dentist can keep what is saved. This is why modified capitation delivers prevention while UDAs and fees for items do not.
	Genuinely, I wish the Government every success with their new system. Dentists want it to work. The dental organisations want it to work. But the way that it is intended to work must be clarified and explained to contractors and to their patients.

Lord Warner: My Lords, we have had an interesting short debate, with many useful points raised. On the issue of communication, the proposals have been and will continue to be well-advertised. They will have been in the public domain for nine months prior to the introduction of the new system in April 2006. During this time we have listened to the public response. We considered carefully the merits of reducing the band 2 and particularly the band 3 charge, as the consumer organisations asked. However, if such a reduction had been made, it would have had a disproportionate impact on the charges for other bands. We have reduced the cost of replacement orthodontic appliances to 30 per cent of the £189 band 3 charge—a substantial reduction.
	For the first time, we have new powers in regulations to communicate and advertise a fairer, simpler system. Schedule 3, Part 5 of Regulation 34 of the contract regulations states that a dentist,
	"must display in a prominent position in its premises in a part to which patients have access information relating to patient charges, as supplied by the PCT, for the purposes of providing information to patients".
	Noble Lords may be interested that in the early road testing of three key messages with users, one which contrasted the current 400 charges with the new charging regime, most people were shocked that there were over 400 charges and believed that this was not something that the NHS should be advertising—their words, not mine. And in response to this debate we will redouble our efforts to make clear to patients that information on charges is now guaranteed by robust regulations. I would be happy for the noble Baroness, Lady Neuberger, and other noble Lords to write to me with any key points which she or they would like the new information leaflet for patients to incorporate.
	As I explained in my opening remarks and the letter to the Committee on the Merits of Statutory Instruments, in devising the new charging regime we have learned from the experience of the PDS scheme, but could not pilot a parallel system of charges, because it would have been unlawful to do so. The noble Earl, Lord Howe, recognised that. Section 26 of the National Health Service (Primary Care) Act 1997 allowed for PDS pilots, but said that the charging regime had to be the same as GDS.
	I turn to the issue of whether we backed away from Cayton. I repeat that members who now criticise signed up to the Cayton group report. Whatever aspersions that some members of the Cayton group, such as the BDA, may wish to cast on the conclusions of that report now, they did sign up to it when it was published and we have kept faith with it in these regulations.
	As I said in my opening remarks, the Cayton report was frank in stating that there may be winners and losers. We acknowledge that. The report stated that its proposals for banded charges would improve affordability and equity. We have stuck with banded charges. The cost of the most expensive treatment has been cut in half, and up to two thirds of people may pay less in charges overall.
	The alternative would have been to keep the current 400 charges; maintain confusion for patients; operate a system that patients do not want; and fly in the face of what the Cayton group recommended. It is considerably easier to criticise reform of patient charges than it is to think up new arrangements and to enact them. Our proposals are faithful to those of Cayton.
	I dealt with the issue of why we did not pilot the new system of charging, but we drew on the experience of the personal dental services arrangements which now cover more 30 per cent of dentists. Those have shown a considerable drop in the number of item-of-service payments involving a dentist using that new system.
	A number of noble Lords asked why we claim to have changed the ratio for the three bands. The figures in the report were only illustrative, based on the Dental Practice Board's classification of treatments, and the new ratios reflect the grouping of treatments into three units of dental activity. The Cayton report recommended that the relative weighting of the bands should be maintained. In relative terms, there is still a much greater difference between band 3 charges and bands 1 and 2. The band 1 charge, which most people will pay, has simply moved over time from the £12 to £15 banding that was suggested, to £15.50, which, as I said in my opening remarks, includes a provision for inflation next year.
	A number of noble Lords suggested that the combination of the new charges and the new contract will not provide incentives for the promotion of oral health among patients, because it is still based on units of dental activity. One of the objections to the item-of-service remuneration system, on which the current charges are based, is that it rewards dentists only for treating dental decay—drilling and filling. The need to pay dentists for advising people on how to maintain good oral health by preventing dental disease is fundamental to the new contract. Preventive work is included in the list of mandatory services, and an exhaustive list of these services is included in the description of the band 1 courses of treatment. By taking dentists off the drill-and-fill treadmill and allowing them to spend more time with patients, we have allowed them time to give oral health promotion messages. As I said on several occasions and in the letter to the merits committee, the number of items of service in the PDS pilots was reduced by about 30 per cent, and that has provided dentists with much more time to carry out health promotion and preventive work. A combination of the changes of approach that we are introducing gets dentists of the drill-and-fill treadmill and provides opportunities for preventive work with patients.
	I may not have responded in as much detail as a number of noble Lords would have liked, but the hour is late and I am about to lose my voice. I recognise the anxieties that a number of noble Lords have expressed. We will of course keep all these arrangements under review and we will no doubt return to this issue at some later stage when we have more experience.

Brought from the Commons, read a first time, and referred to the Examiners.
	House adjourned at twenty minutes before eight o'clock.
	Thursday, 15 December 2005.